Unpublished Dispositionunited States of America, Plaintiff-appellee v. Jonnie Bernard Mack, Defendant-appellant, 802 F.2d 460 (6th Cir. 1986)

BEFORE: ENGEL, JONES and RYAN, Circuit Judges

ORDER

This matter is before the Court for consideration of appellee's motion to dismiss this appeal as being untimely filed. Appellant has not responded.

By judgment and commitment order dated May 23, 1986, appellant was convicted of conspiracy with intent to distribute heroin and conspiracy to distribute heroin (21 U.S.C. § 846 and 841(a) (1)), distribution of heroin--aiding and abetting (21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2) and distribution of heroin (21 U.S.C. § 841(a) (5)). The order was filed May 29, 1986. Appellant filed his notice of appeal on June 11, 1986; it was docketed June 12, 1986.

Appellee seeks to have this appeal dismissed as being filed late.

A defendant in a criminal case must file his notice of appeal within ten days of entry of judgment. Rule 4(b), Federal Rules of Appellate Procedure. A judgment is entered when it is entered in the criminal docket. Rule 4(b), Federal Rules of Appellate Procedure. As indicated by the district court docket sheet, the judgment from which appellant is appealing was docketed May 29, 1986. The notice of appeal was due ten days after entry of that judgment--June 9, 1986 (the tenth day was Sunday, June 8, 1986). Rule 4(b), Federal Rules of Appellate Procedure. The notice of appeal was due on June 9, 1986, and was not filed until June 11, 1986--two days late. Therefore, the notice of appeal was untimely filed.

It is ORDERED that the motion to dismiss be and hereby is granted. This appeal is dismissed without prejudice to appellant's right to seek an extension of time within which to file a notice of appeal. Rule 4(b), Federal Rules of Appellate Procedure.