Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Leo Victor Savage, Defendant-appellant, 836 F.2d 1348 (6th Cir. 1988)

ORDER

This pro se federal prisoner appeals the district court's order denying his motion to reconsider an earlier order denying his motion for reduction of sentence filed pursuant to Fed. R. Crim. P. 35(b). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record indicates that the order of the district court dismissing defendant's motion for reduction of sentence was entered on June 17, 1987. The motion to reconsider was filed on July 8, 1987. This motion was not filed within the ten day period prescribed by Fed. R. App. P. 4(b) and failed to toll the appeals period. See United States v. Willis, 804 F.2d 961, 962 (6th Cir. 1986); United States v. Russo, 760 F.2d 1229, 1230 (11th Cir. 1985) (per curiam).

The motion for reconsideration was denied by an order entered on July 20, 1987. Defendant filed a notice of appeal on August 20, 1987. Notice of appeal from an order denying a motion to reconsider must be filed within ten days of entry of the order. Fed. R. App. P. 4(b).

The failure of an appellant to file a timely notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(b) is a mandatory and jurisdictional prerequisite which the court can neither waive nor extend. United States v. Merrifield, 764 F.2d 436 (5th Cir. 1985). Rule 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal. Because the notice of appeal is not timely, the court lacks jurisdiction to review either the district court's order denying the motion for reconsideration.

Accordingly, it is hereby ORDERED that the appeal be dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.