Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Melvin J. Gitler, Defendant-appellant, 928 F.2d 1133 (6th Cir. 1991)

ORDER

This matter is before the court upon consideration of the appellant's motion to expedite appeal and response to this court's January 11, 1991, order directing him to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant states that his notice of appeal was late because he did not receive the district court's order until the time in which to appeal had passed. The appellee has failed to respond.

It appears from the record that the judgment denying appellant's Fed. R. Crim. P. 35 motion was entered on October 2, 1990, and that the notice of appeal filed November 13, 1990, was 32 days late. Fed. R. App. P. 4(b) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(b) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987); United States v. Willis, 804 F.2d 961, 963 n. 2 (6th Cir. 1986); United States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985) (per curiam). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. The motion to expedite appeal is denied.