64 F3d 661 United States v. Smith

64 F.3d 661

UNITED STATES of America, Plaintiff--Appellee,
Johnny Eugene SMITH, Defendant--Appellant.

No. 94-6823.

United States Court of Appeals, Fourth Circuit.

Submitted: July 27, 1995.
Decided: August 21, 1995.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Stewart L. Cloer, Cloer & Elliott, Hickory, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston, Special Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Before ERVIN, Chief Judge, MOTZ, Circuit Judge, and PHILLIPS, Senior Circuit Judge.


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Johnny Eugene Smith appeals from a district court order granting a Fed.R.Crim.P. 35(b) motion by the Government and reducing Smith's sentence. We dismiss.


Although the issue has not been raised by either party, the notice of appeal in this matter was untimely. It was filed more than forty days after the entry of the order granting the Rule 35(b) motion. Fed. R.App. P. 4(b) (ten-day time limit and thirtyday extension for filing notice of appeal in criminal cases); United States v. Kress, 944 F.2d 155, 161 (3rd Cir.1991) (ten-day period applies to Rule 35 motions); see also United States v. Breit, 754 F.2d 526, 528-29 (4th Cir.1985) (same). We are without jurisdiction to hear the appeal and, therefore, dismiss it.


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.