Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Gregory Wrice, Defendant-appellant, 918 F.2d 179 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 918 F.2d 179 (6th Cir. 1990)

Nov. 14, 1990


Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and BERTELSMAN, District Judge.* 

ORDER

The defendant appeals his jury conviction for possession with intent to distribute cocaine. The defendant was sentenced on March 19, 1990. The judgment and commitment order was entered on the district court docket sheet on March 26, 1990. Defendant's counsel filed a notice of appeal on May 4, 1990.

On June 7, 1990, the Clerk entered an order directing the defendant to show cause why his appeal should not be dismissed for his failure to file a timely notice of appeal under Rule 4(b), Fed. R. App. P. Defendant's counsel has responded by filing a "motion to allow late filing of notice of appeal," wherein he asserts the judgment and commitment order was received in his office and placed in the defendant's file without counsel's knowledge. He states he filed the notice of appeal immediately after the oversight was discovered. Believing the late notice of appeal was the result of excusable neglect, he asks this court to accept jurisdiction over this case.

Under Rule 4(b), only a district court may extend the time to file a notice of appeal. This court is expressly prohibited from doing so under Rule 26(b), Fed. R. App. P. The defendant does not assert or otherwise show that he obtained an extension of time from the district court in which to file his notice of appeal.

It therefore is ORDERED that this appeal is dismissed for lack of appellate jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. This order, of course, is without prejudice to any remedies the defendant may have under 28 U.S.C. § 2255.

 *

The Honorable William O. Bertelsman, U.S. District Judge for the Eastern District of Kentucky, sitting by designation