United States of America, Plaintiff-appellee, v. Arthur White, Defendant-appellant, 838 F.2d 468 (4th Cir. 1988)

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US Court of Appeals for the Fourth Circuit - 838 F.2d 468 (4th Cir. 1988) Submitted Aug. 7, 1987. Decided Jan. 25, 1988

Arthur White, appellant pro se.

Debra Jo Stuart, Assistant United States Attorney, for appellee.

Before MURNAGHAN, ERVIN, and CHAPMAN, Circuit Judges.

PER CURIAM:


Arthur White, a federal inmate, filed a motion for correction of sentence pursuant to Rule 35, Federal Rules of Criminal Procedure, on July 28, 1986. The motion was denied on July 31, 1986, and no notice of appeal was received by the district court within the ten-day period prescribed by Rule 4(b), Federal Rules of Appellate Procedure.

On December 10, 1986, White filed a motion with the district court alleging that he had appealed the order of July 31 and requesting the court to rule on it. This motion was denied, and White appealed, seeking review of the district court's denial of Rule 35 relief.

An appeal from a denial of relief under Rule 35 must be received by the district court within ten days. Federal Rule of Appellate Procedure 4(b); United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977); United States v. Merrifield, 764 F.2d 436 (5th Cir. 1985). Even if White's motion of December 10, 1986, is considered as a notice of appeal, it was clearly untimely.

As White failed to note an appeal within the ten-day period prescribed by Rule 4(b), we lack jurisdiction to review the district court's denial of relief under Rule 35. We accordingly dismiss the appeal. We dispense with oral argument because the dispositive issues have recently been decided authoritatively.

DISMISSED.