United States of America, Plaintiff-appellee, v. Steven H. Lund, Defendant-appellant, 885 F.2d 867 (4th Cir. 1989)

Stephen H. Lund seeks to appeal the district court's denial of his motion for reduction of sentence under Fed. R. Crim. P. 35(b). We dismiss the appeal for lack of jurisdiction.

Rule 35 motions are considered continuations of the criminal proceedings against a defendant, and thus the 10-day appeal period set out in Fed. R. App. P. 4(b) applies. See United States v. Breit, 754 F.2d 526, 528-29 (4th Cir. 1985); United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977). Because Lund did not submit his notice of appeal to prison authorities until 38 days after the district court's order was entered, the appeal was untimely. See Houston v. Lack, 56 U.S.L.W. 4728 (U.S. June 24, 1988) (No. 87-5428) (prisoner's notice of appeal is filed when it is given to prison authorities for mailing to the district court).

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). Lund's failure to note a timely appeal deprives this Court of jurisdiction to consider this case. We therefore dismiss the appeal. We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.^* 

DISMISSED