United States of America, Plaintiff-appellee, v. Michael Gray, Defendant-appellant, 854 F.2d 1318 (4th Cir. 1988)

Michael Gray appeals the district court's denial of his motion to correct an illegal sentence under Fed. R. Crim. P. 35. We dismiss the appeal for lack of jurisdiction.

Rule 35 motions are considered continuations of the criminal proceedings against a defendant; thus, the ten-day notice of appeal period of Fed. R. App. P. 4(b) applies. See United States v. Breit, 754 F.2d 526, 528-29 (4th Cir. 1985); United States v. Guiterrez, 556 F.2d 1217, 1217 (5th Cir. 1977). Because Gray did not file his notice of appeal until twenty days after the district court's order was docketed, his appeal was untimely.

Gray was notified of his right to obtain an extension of time in which to appeal by demonstrating to the district court that the late filing was the result of excusable neglect. Guiterrez, 556 F.2d at 1217-18; cf. United States v. Reyes, 759 F.2d 351, 353 (4th Cir.) (in direct criminal appeal, notice of appeal filed within thirty days after appeal period has expired is sufficient to require that appellant be given opportunity to show excusable neglect), cert. denied, 474 U.S. 857 (1985). Gray has not attempted to demonstrate excusable neglect to the district court, nor has he complied with this Court's request that he notify the Court of any actions he has taken to perfect his appeal by March 14, 1988.

The time periods established by Fed. R. App. P. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Gray's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case. We therefore dismiss the appeal. We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

DISMISSED.