Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Genovis Dewayne Durr, Defendant-appellant, 888 F.2d 1392 (6th Cir. 1989)

This matter is before the Court on the defendant's response to the Court's order of September 20, 1989, directing the defendant to state why his appeal should not be dismissed for lack of jurisdiction.

The defendant appeals the sentence imposed pursuant to his guilty plea to armed and unarmed bank robbery. The judgment of sentence under the Sentencing Reform Act was entered on August 24, 1989. Pursuant to Fed. R. App. P. 4(b), the defendant had ten days from the entry of that judgment, until September 5, 1989, in which to file his notice of appeal. The appeal filed on September 11, 1989, was beyond that time period. The defendant's counsel states in his response that he believed he had 30 days in which to appeal the sentence.

Timely filing of a notice of appeal is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978); United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987). Fed. R. App. P. 4(b) allows the district court, upon a showing of excusable neglect, to extend the time for a criminal appeal provided the motion to extend is filed within 40 days of the judgment. No such extension was sought or granted.

It is therefore ORDERED that the show cause order of September 20, 1989, is discharged, and this appeal is dismissed sua sponte for lack of jurisdiction. Rule 9(b), Local Rules of the Sixth Circuit.