Unpublished Dispositionunited States of America, Plaintiff-appellee, v. David Henry Capps, Defendant-appellant, (91-5154)danny Joe Capps, Defendant-appellant. (91-5155), 933 F.2d 1010 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 933 F.2d 1010 (6th Cir. 1991) May 21, 1991

Before ALAN E. NORRIS and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


The defendants entered guilty pleas to charges of selling and transferring and possession and distribution of obscene matter in violation of 18 U.S.C. §§ 1466 and 2. Separate judgment and commitment orders were entered on the district court docket sheet on December 14, 1990. Defendant David Henry Capps filed a notice of appeal on December 26, 1990, and the resultant appeal was docketed herein as Case No. 91-5113. Subsequently, the defendants filed a joint notice of appeal on January 9, 1991. These two appeals resulted from that notice.

On March 4, 1991, the clerk of this court entered an order directing the defendants to show cause why their appeals should not be dismissed for their failure to file their notice of appeal within the 10-day period provided under Rule 4(b), Fed. R. App. P. The defendants have not responded to that order.

A timely notice of appeal is a mandatory and jurisdictional prerequisite to our review of direct criminal appeals. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987). Absent a timely notice of appeal or an extension of time from the district court for filing a notice of appeal, this court lacks jurisdiction to review the defendants' convictions and sentences on direct appeal.

It therefore is ORDERED that these appeals are dismissed for lack of appellate jurisdiction. Rule 9(a), Rules of the Sixth Circuit. This order is without prejudice to any post-conviction remedies available to the defendants under 28 U.S.C. § 2255 and shall have no effect upon the appeal in Case No. 91-5113.