United States of America, Plaintiff Appellee, v. Sara Jean Shoemaker Rusher A/k/a Sarah Anne Rusher,defendant Appellant.united States of America, Plaintiff Appellee, v. Sarah Jean Shoemaker Rusher, A/k/a Sarah Anne Rusher,defendant Appellant, 23 F.3d 404 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 23 F.3d 404 (4th Cir. 1994) Submitted March 22, 1994Decided April 11, 1994

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Richard C. Erwin, Senior District Judge. (CR-90-158-G)

1Sarah Jean Shoemaker Rusher, appellant pro se.

Douglas Cannon, Asst. U.S. Atty., Greensboro, NC, for appellee.

M.D.N.C.

DISMISSED IN NO. 93-6990 AND AFFIRMED IN NO. 93-7174.

Before HAMILTON and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


On August 26, 1993, the district court denied Appellant's Fed. R. Crim. P. 33 motion for new trial based on newly discovered evidence. Appellant noted her appeal from this decision on September 13, 1993, outside the ten-day time period set forth in Fed. R. App. P. 4(b). On October 4, 1993, Appellant requested that the district court extend the time for filing the notice of appeal to September 13, 1993. She claimed that an extension was warranted because she had to notify her husband, who was incarcerated elsewhere, of the denial of the Rule 33 motion prior to noting her appeal. The district court denied her request for an extension.

In No. 93-7174, Appellant appeals the district court's order denying the requested extension. After a careful review of the record, we conclude that the district court did not abuse its discretion in denying relief. We accordingly affirm the decision. See United States v. Prairie Pharmacy, Inc., 921 F.2d 211, 212 (9th Cir. 1990); United States v. Breit, 754 F.2d 526, 528-29 (4th Cir. 1985).

In No. 93-6990, Appellant appeals the denial of Fed. R. Crim. P. 33 relief. The time periods set forth in Fed. R.App. 4 for filing notices of appeal are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Appellant's failure to file a timely notice of appeal and the district court's proper denial of Appellant's request for an extension of the appeal period leaves this Court without jurisdiction to consider the merits of her appeal. We therefore dismiss this appeal.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

No. 93-6990 DISMISSED

No. 93-7174 AFFIRMED