United States of America, Plaintiff-appellee, v. Leonard Harold Bunch, A/k/a Waldo "wally" Cooney, Defendant-appellant, 28 F.3d 113 (10th Cir. 1994)

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US Court of Appeals for the Tenth Circuit - 28 F.3d 113 (10th Cir. 1994)

May 26, 1994


ORDER AND JUDGMENT1 

Before TACHA and BRORBY, Circuit Judges, and BROWN,2  Senior District Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Bunch entered a guilty plea following four days of jury trial to four drug counts. At sentencing, Mr. Bunch's offense level was increased two levels for possessing a firearm during the base offense. Mr. Bunch appeals this sentence enhancement asserting insufficiency of the evidence.

We must first examine our jurisdiction. The district court entered judgment and sentence on January 5, 1993. Mr. Bunch executed his pro se notice of appeal on February 8, 1993, and it was filed on February 11, 1993. Counsel for Mr. Bunch filed a motion for leave to appeal out of time on February 11, 1993. The motion for leave to appeal out of time was denied.

Timely filing on a notice of appeal is a mandatory prerequisite to the exercise of appellate jurisdiction. Fed. R. App. P. 4(b) provides the notice of appeal must be filed within ten days after the entry of the judgment appealed. Mr. Bunch's notice of appeal was not filed until thirty-seven days after judgment. It is clear this court lacks jurisdiction to hear and decide this appeal.

This court has nevertheless examined the record on appeal. There is no merit to Mr. Bunch's appeal.

The appeal is DISMISSED for lack of jurisdiction.

 1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

 2

The Honorable Wesley E. Brown, Senior United States District Judge for the District of Kansas, sitting by designation