United States of America, Plaintiff-appellee, v. Mohinder Singh Ahluwalia, Defendant-appellant, 891 F.2d 292 (6th Cir. 1989)

ORDER

The defendant has filed a notice of appeal from the jury's verdict of guilty on charges of unlawful distribution of a substance containing a detectable amount of heroin. The jury reached its verdict on October 17, 1989. The action was referred to the probation department for a presentence investigation on the same day. On October 18 the written verdict was entered on the record. The defendant filed his notice of appeal on October 31. The district court has not yet set a date for sentencing.

Fed. R. App. P. 4(b) provides that a notice of appeal in a criminal action must be filed within ten days from the entry of judgment. The final judgment for purposes of 28 U.S.C. § 1291 in a criminal proceeding is the sentence. Flanagan v. United States, 465 U.S. 259, 263 (1984); Berman v. United States, 302 U.S. 211, 212 (1937). Since sentence has not yet been imposed this appeal is premature.

It is therefore ORDERED that this appeal is dismissed sua sponte without prejudice to the defendant's right to perfect a timely appeal following the sentencing. Rule 9(b), Local Rules of the Sixth Circuit.