United States of America, Plaintiff-appellee, v. Kenneth Lyle Davis, Defendant-appellant, 944 F.2d 906 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 944 F.2d 906 (6th Cir. 1991) Sept. 23, 1991

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

ORDER

This court entered an order on July 12, 1991, directing the appellant to show cause within twenty-one days why the appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant has responded stating that opposing counsel did not raise the argument that the motion for rehearing was filed out of time and that said motion tolled the appeal period.

It appears from the record that the final order was entered October 3, 1990, denying a Fed. R. Crim. P. 35 motion for reduction of sentence. Reconsideration of that order was sought by motion filed November 29, 1990. Reconsideration was denied on March 7, 1991. The notice of appeal filed on March 18, 1991, was five months 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). A motion for reconsideration of a Fed. R. Crim. P. 35 denial must be filed within 10 days after entry of the order denying the Rule 35 motion to toll the time. United States v. Russo, 760 F.2d 1229, 1230 (11th Cir. 1985) (per curiam). The motion for reconsideration in the instant case was filed over one month after entry of the order denying the Rule 35 motion; therefore, the appeal period was not tolled. Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.

 *

The Honorable James Harvey, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation