United States of America, Plaintiff Appellee, v. Franklin Eugene Sanders, Defendant Appellant, 38 F.3d 1214 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 38 F.3d 1214 (4th Cir. 1994)

Submitted Aug. 25, 1994. Decided Oct. 13, 1994

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., District Judge. (CR-93-240).

Franklin Eugene Sanders, appellant Pro Se.

William Glenn Yarborough, III, Asst. U.S. Atty., Greenville, SC, for appellee.



Before RUSSELL and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.


Franklin Eugene Sanders appeals the district court's denial of his motion to correct sentence under Fed. R. Crim. P. 35. The clerk entered the order denying Sanders' motion on May 17, 1994. To be timely, Sanders' notice of appeal was due on May 27, 1994. His notice of appeal was postmarked May 31, 1994, and it was filed in the district court on June 2, 1994.

Rule 4(b) of the Federal Rules of Appellate Procedure requires that a notice of appeal be filed within ten days of entry of judgment. The district court may extend the time for filing a notice of appeal for thirty days upon a showing of excusable neglect with or without a motion being filed. It is well settled that compliance with Rule 4(b) is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220 (1960); United States v. Miles, 510 F.2d 1362 (4th Cir. 1975). Because Sanders filed his notice of appeal sixteen days after the entry of the order from which he appeals and the district court did not grant an extension of time for excusable neglect, this Court is without jurisdiction to consider the merits of Sanders' appeal. Accordingly, we dismiss the appeal for lack of jurisdiction.

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.