Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Mary C. Mckee Granger, Defendant-appellant, 811 F.2d 608 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 811 F.2d 608 (6th Cir. 1986) Dec. 15, 1986

Before ENGEL, KRUPANSKY and RYAN, Circuit Judges.


This matter is before the Court on a motion to dismiss an appeal from an order denying the appellant's motion for resentencing and modification of sentence pursuant to Rule 35, Federal Rules of Criminal Procedure. The order was filed on August 11, 1986 and docketed on August 13, 1986. The notice of appeal was filed August 27, 1986.

Pursuant to Rule 4(b), Federal Rules of Appellate Procedure, a notice of appeal must be filed within 10 days of the entry of the order. See United States v. Russo, 760 F.2d 1229 (11th Cir. 1985). This notice of appeal was filed two days late and failed to show excusable neglect. Therefore, this Court lacks jurisdiction to hear the appeal and it must be dismissed.

Rule 4(b) provides that upon a showing of excusable neglect the district court may extend the time for filing the notice of appeal when the notice is filed within 30 days of the expiration of the appeals period. United States v. Hoye, 548 F.2d 1271 (6th Cir. 1977). Since the notice of appeal was only two days late, the appellant may file a motion for extension of time for reasons of excusable neglect in the district court.

Therefore, it is ORDERED that the motion to dismiss be granted and that the appeal be and hereby is dismissed for lack of jurisdiction, without prejudice to any rights of the appellant to file a motion for extension of time in the district court.