United States v. Arthur White

838 F.2d 468, 1988 U.S. App. LEXIS 629, 1988 WL 6842

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 25, 1988
• Docket: 87-7086
• Status: Unpublished

Opinion

838 F.2d 468
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Arthur WHITE, Defendant-Appellant.

No. 87-7086.

United States Court of Appeals, Fourth Circuit.

Submitted Aug. 7, 1987.
Decided Jan. 25, 1988.

Arthur White, appellant pro se.

Debra Jo Stuart, Assistant United States Attorney, for appellee.

Before MURNAGHAN, ERVIN, and CHAPMAN, Circuit Judges.

PER CURIAM:

Arthur White, a federal inmate, filed a motion for correction of sentence pursuant to Rule 35, Federal Rules of Criminal Procedure, on July 28, 1986. The motion was denied on July 31, 1986, and no notice of appeal was received by the district court within the ten-day period prescribed by Rule 4(b), Federal Rules of Appellate Procedure.

On December 10, 1986, White filed a motion with the district court alleging that he had appealed the order of July 31 and requesting the court to rule on it. This motion was denied, and White appealed, seeking review of the district court's denial of Rule 35 relief.

An appeal from a denial of relief under Rule 35 must be received by the district court within ten days. Federal Rule of Appellate Procedure 4(b); United States v. Guiterrez, 556 F.2d 1217 (5th Cir.1977); United States v. Merrifield, 764 F.2d 436 (5th Cir.1985). Even if White's motion of December 10, 1986, is considered as a notice of appeal, it was clearly untimely.

As White failed to note an appeal within the ten-day period prescribed by Rule 4(b), we lack jurisdiction to review the district court's denial of relief under Rule 35. We accordingly dismiss the appeal. We dispense with oral argument because the dispositive issues have recently been decided authoritatively.

DISMISSED.