802 F2d 460 United States of America v. Gale L Gallaway

802 F.2d 460

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
GALE L. GALLAWAY, Defendant-Appellant.

No. 86-3516.

United States Court of Appeals, Sixth Circuit.

Aug. 25, 1986.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.


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1

BEFORE: JONES and MILBURN, Circuit Judges; and CONTIE, Senior Circuit Judge

ORDER

2

This matter is before the Court upon consideration of appellant's response to this Court's order to show cause as to why the appeal should not be dismissed as untimely filed.

3

Appellant has attempted to take an appeal from an order of the district court overruling his motion pursuant to Rule 35, Federal Rules of Criminal Procedure, to correct an illegal sentence. As that order was entered on May 1, 1986, appellant was allowed ten days, or until May 12, 1986, in which to file a notice of appeal. Rule 4(b), Federal Rules of Appellate Procedure. Appellant, however, did not file his notice of appeal until June 4, 1986--twenty-three days late. Furthermore, he did not seek an extension of time in which to file a notice of appeal pursuant to Rule 4(b), Federal Rules of Appellate Procedure.

4

Compliance with Rule 4(b), Federal Rules of Appellate Procedure, is a mandatory jurisdictional requirement which this Court can neither waive nor extend. United States v. Merrifield, 764 F.2d 436 (5th Cir. 1985). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time in which the notice of appeal is required to be filed. Because appellant failed to file a timely notice of appeal, this Court is deprived of jurisdiction over the matter.

5

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit. However, this dismissal is without prejudice to any right of appellant to file a motion in the district court to extend for reasons of excusable neglect, the time for filing a notice of appeal pursuant to Rule 4(b), Federal Rules of Appellate Procedure.