United States of America, Plaintiff-appellee, v. Garfield Washington, Jr., Defendant-appellant, 918 F.2d 174 (4th Cir. 1990)

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U.S. Court of Appeals for the Fourth Circuit - 918 F.2d 174 (4th Cir. 1990) Submitted Oct. 29, 1990. Decided Nov. 16, 1990

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, Chief District Judge. (CR-88-81)

Garfield Washington, Jr., appellant pro se.

Carl Horn, III, Office of the United States Attorney, Charlotte, N.C., for appellee.



Before WIDENER, PHILLIPS and WILKINSON, Circuit Judges.


Garfield Washington, Jr. appeals the district court's denial of his Fed. R. Crim. P. 35 motion. However, Washington did not note his appeal until well after the 10-day appeal period and the additional 30-day excusable neglect period had expired. See Fed. R. App. P. 4(b).

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)). Appellant's failure to note a timely appeal deprives this Court of jurisdiction to consider this case.*  We therefore deny leave to proceed in forma pauperis and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.



Washington claims that his appeal is timely because he never received notice of the district court's order. However, lack of notice does not permit an untimely appeal. United States v. Schuchardt, 685 F.2d 901, 902 (4th Cir. 1982)