United States of America, Plaintiff-appellee, v. Sean Dorrold Sawyer, Defendant-appellant, 961 F.2d 217 (9th Cir. 1992)

MEMORANDUM^** 

Sean Dorrold Sawyer appeals his sentence under the Sentencing Guidelines imposed following his guilty pleas to six counts of bank robbery. He contends that the district court improperly sentenced him under the career offender provisions of the Guidelines. Because Sawyer did not timely appeal the district court's judgment, we lack jurisdiction and must dismiss.¹ 

Sawyer contends that his notice of appeal was timely because he timely deposited his notice of appeal in the United States mail and timely served the United States.

Federal Rule of Appellate Procedure 4(b) provides that a notice of appeal must be filed no later than ten days after the entry of judgment in a criminal case. A district court may extend the time for filing a notice of appeal "upon a showing of excusable neglect for a period of time not to exceed 30 days from the expiration of the time proscribed by [Rule 4(b) ]." Fed. R. App. P. 4(b). Compliance with Rule 4(b) is "both mandatory and jurisdictional." United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir. 1986) (citations omitted).

In this circuit, the timely mailing of a notice of appeal does not constitute timely filing, Allen v. Schnuckle, 253 F.2d 195, 197 (9th Cir. 1958), except in the case of prisoners proceeding without counsel, Vaughan v. Ricketts, 950 F.2d 1464, 1466-67 (9th Cir. 1991). Sawyer neither filed his notice of appeal within the ten-day filing period, nor did he timely seek an extension of time due to "excusable neglect." The district court lacked jurisdiction to extend the time for the filing of Sawyer's notice of appeal after the expiration of the forty-day period following the district court's entry of judgment. United States v. Eccles, 850 F.2d 1357, 1363 (9th Cir. 1988).

DISMISSED.