Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Preston Dewitt Wiley, Defendant-appellant, 805 F.2d 1037 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 805 F.2d 1037 (6th Cir. 1986) Oct. 20, 1986

Before JONES, KRUPANSKY and NELSON, Circuit Judges.


ORDER

This matter is before the Court for consideration of appellant's response to this Court's order of July 23, 1986, to show cause why this appeal from the findings of a presentence report should not be dismissed as untimely filed.

On August 30, 1985, the district court entered findings regarding appellant's presentence report. Such findings were entered pursuant to Rule 32(c) (3) (D), Federal Rules of Criminal Procedure. A notice of appeal from that order was due within ten days--September 9, 1985. Rule 45(a), Federal Rules of Criminal Procedure, Rule 4(b), Federal Rules of Appellate Procedure. Appellant did not timely appeal from the August 30, 1985, order; instead he filed a "Motion for Re-Consideration of Findings Under Rule 32(c) (D) (3) ..." on April 17, 1986. This motion did not toll the time for filing the notice of appeal from the August 30, 1985, order because it is not a motion for a new trial or an arrest of judgment within the meaning of Rule 4(b), Federal Rules of Appellate Procedure. The district court entered an order denying the motion to reconsider on July 8, 1986. Appellant filed a notice of appeal from the August 30, 1985, order on July 8, 1986.

Appellant does not establish that good cause existed for the tardiness of filing his notice of appeal and does not establish that an extension of time was sought in or granted by the district court.

Because the notice of appeal (July 8, 1986) from the order of August 30, 1985, is 302 days late, it is ORDERED that this appeal be and hereby is dismissed.