OpenJurist

836 F2d 551 United States v. Walker

836 F.2d 551

UNITED STATES of America, Plaintiff-Appellee,
v.
Melvin WALKER, Jr., Defendant-Appellant.

No. 87-1240.

United States Court of Appeals, Sixth Circuit.

Dec. 28, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before BOYCE F. MARTIN, Jr. and RALPH B. GUY, Jr. Circuit Judges, and EDWARD H. JOHNSTONE, Chief District Judge.*

ORDER

2

The defendant appeals his conviction, pursuant to a jury verdict, on one count of possession of an unregistered firearm, 26 U.S.C. Sec. 5861(d) and three counts of being a felon in possession of a firearm, 18 U.S.C. app. II Sec. 1202(a)(1) (repealed 1986). The government now moves to dismiss this matter on grounds that the defendant failed to file a timely notice of appeal. The defendant has responded in opposition to the motion.

3

The district court entered a judgment and commitment order on January 6, 1987. The defendant, acting pro se, filed his notice of appeal on March 2, 1987.

4

Rule 4(b), Federal Rules of Appellate Procedure, provides that the defendant in a criminal proceeding has ten (10) days from the entry of judgment in which to file a notice of appeal. That requirement is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220 (1960). This Court is without authority to extend the time for filing a notice of appeal. Rule 26(b), Federal Rules of Appellate Procedure. Thus, absent an extention of time from the district court for filing a notice of appeal, see Rule 4(b), Federal Rules of Appellate Procedure; United States v. Hoye, 548 F.2d 1271 (6th Cir.1977) (per curiam), failure to file a notice of appeal within ten days after entry of judgment deprives this Court of jurisdiction. Robinson, 361 U.S. at 229, see United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987).

5

The plaintiff filed his notice of appeal fifty-five days after entry of the judgment and commitment order. Because the notice of appeal was not filed within the ten (10) day time limit of Rule 4(b), Federal Rules of Appellate Procedure,

6

It is ORDERED that the motion to dismiss is granted.

*

The Honorable Edward H. Johnstone, Chief U.S. District Judge for the Western District of Kentucky, sitting by designation