Unpublished Dispositionunited States of America, Plaintiff-appellee, v. John Lee Evans, Defendant-appellant, 934 F.2d 322 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 934 F.2d 322 (6th Cir. 1991) May 31, 1991

Before RALPH B. GUY, Jr. and DAVID A. NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


John Lee Evans, a federal prisoner, appeals through counsel the denial of his motion to reduce sentence filed under Fed. R. Crim. P. 35. Review of the record shows that the order denying relief was docketed on December 11, 1990. Evans filed a timely notice of appeal, but he also served a motion for reconsideration on December 14, 1990. The filing of a motion for reconsideration of the denial of a Rule 35 motion nullifies a notice of appeal filed before the motion to reconsider is decided. See United States v. Gargano, 826 F.2d 610, 611-12 (7th Cir. 1987). The district court subsequently denied the motion for reconsideration and no new notice of appeal was filed. Therefore, this court lacks jurisdiction over the appeal, and the case is accordingly dismissed. Rule 8(a), Rules of the Sixth Circuit.

Judge Guy dissents believing that the district court lost jurisdiction over the case once a timely notice of appeal was filed.