United States of America, Plaintiff-appellee, v. James Ronald Garner, Also Known As Duck, Defendant-appellant, 958 F.2d 372 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 958 F.2d 372 (6th Cir. 1992) March 23, 1992

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.* 


Defendant was sentenced on April 19, 1990, to 136 months imprisonment for violations of 21 U.S.C. §§ 841(a) and 846. His appeal of that conviction was affirmed by this court on August 6, 1991. See United States v. James R. Garner, No. 90-5613 (6th Cir. August 6, 1991). On February 3, 1992, defendant filed a notice of appeal in the district court, designated as an appeal of sentence pursuant to 18 U.S.C. § 3742. The government now moves to dismiss the appeal for lack of jurisdiction.

A notice of appeal in a criminal action is required to be filed within ten days of the entry of the judgment. Rule 4(b), Fed. R. App. P. This requirement in mandatory and jurisdictional. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987). The statute providing for review of sentences, 18 U.S.C. § 3742, does not extend the time for filing a notice of appeal. The notice of appeal filed on February 3, 1992, is untimely and cannot confer jurisdiction in this court.

It therefore is ORDERED that the motion to dismiss is granted without prejudice to whatever rights defendant may have to seek review of his sentence in the district court pursuant to 28 U.S.C. § 2255.


The Honorable Charles W. Joiner, U.S. Senior District Judge for the Eastern District of Michigan, sitting by designation