United States of America, Plaintiff-appellee, v. Thomas Robert Moser, Defendant-appellant, 956 F.2d 271 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 956 F.2d 271 (6th Cir. 1992) Feb. 25, 1992

Before RYAN and SUHRHEINRICH, Circuit Judges, and CHURCHILL, Senior District Judge.* 


On January 3, 1992, defendant filed a notice of appeal designated as an appeal pursuant to 18 U.S.C. § 3742 of his sentence of one hundred and eleven months on drug trafficking and firearms charges, entered in July of 1988. That appeal is pending as Case No. 92-5041. However, in 1988 defendant appealed his conviction and the judgment was affirmed by this court. United States v. Moser, No. 88-5846 (6th Cir. March 20, 1989). On November 27, 1989, defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. On May 5, 1990, the district court denied defendant's motion to vacate.

By order entered January 23, 1992, defendant was directed to show cause why Case No. 92-5041 should not be dismissed for lack of jurisdiction. Defendant responded by filing a second notice of appeal in the district court on February 3, 1992. That appeal is pending as Case No. 92-5194.

Upon review, we conclude that these appeals are untimely. Rule 4(b), Fed. R. App. P., provides that a notice of appeal in a criminal action must be filed within ten days after the entry of the judgment appealed from. The filing of a notice of appeal within the prescribed time limits is mandatory and jurisdictional. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987). The statute providing for review of sentences, 28 U.S.C. § 3742, does not extend the time for filing a notice of appeal.

It therefore is ORDERED that Case No. 92-5041 and Case No. 92-5194 are sua sponte dismissed for lack of jurisdiction.


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