OpenJurist

993 F2d 1541 United States v. Nwanze

993 F.2d 1541

UNITED STATES of America, Plaintiff-Appellee,
v.
Austen NWANZE, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Austen Nwanze, Defendant-Appellant.

Nos. 93-6056, 93-6168.

United States Court of Appeals,
Fourth Circuit.

Submitted: May 3, 1993
Decided: May 25, 1993

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge; Richard L. Williams, Senior District Judge. (CR-92-4-3-1, CR-92-4)

Austen Nwanze, Appellant Pro Se.

John Granville Douglass, Office of the United States Attorney, Richmond, Virginia, for Appellee.

E.D.Va.

AFFIRMED IN NO. 93-6056 AND DISMISSED IN NO. 93-6168.

Before RUSSELL and HALL, Circuit Judges, and SPROUSE, Senior Circuit Judge.

PER CURIAM:

OPINION

1

Austen Nwanze appeals from the district court's denial of his Petition for Injunctive Relief, in which he sought an order preventing the government from using information he provided in an unrelated trial (No. 93-6056), and also appeals the district court's order modifying the original sentencing order to conform to the transcript of the sentencing hearing and statutory requirements (No. 93-6168).

2

We affirm the district court's order denying injunctive relief (No. 93-6056), because the underlying issue is moot. The trial at which the government was allegedly planning to use information provided by Nwanze has now been concluded.

3

We dismiss the remaining appeal (No. 93-6168) as untimely, because it was filed beyond the ten-day appeal period provided by Fed. R. App. P. 4(b) and no excusable neglect is present. The time periods established by Fed. R. App. P. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Nwanze's failure to note a timely appeal or to establish excusable neglect for his untimely filing deprives this Court of jurisdiction to consider this case.* We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

No. 93-6056-AFFIRMED No. 93-6168-DISMISSED

*

We also note that if we were to review the merits of Nwanze's claim in No. 93-6168, he would not be entitled to relief. The district court properly corrected the commitment order, pursuant to Fed. R. Crim. P. 36, to reflect the sentence announced at the sentencing hearing and to adhere to the statutory requirements of 18 U.S.C.A. § 924(c) (West Supp. 1993)