United States v. Billman

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-6854

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TOM J. BILLMAN,

Defendant - Appellant.

No. 98-7786

Appeals from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Chief District Judge. (CR-89-466-JFM, CA-97-2120-JFM)

Submitted: March 16, 1999 Decided: April 16, 1999 Before LUTTIG and WILLIAMS, Circuit Judges, BUTZNER, Senior Circuit Judge.

No. 98-6854 affirmed and No. 98-7786 dismissed by unpublished per curiam opinion.

Charles Ivey Billman, Arlington, Virginia, for Appellant. Barbara Slaymaker Sale, Assistant United States Attorney, Joyce Kallam McDonald, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

2 PER CURIAM:

In this consolidated appeal, Tom J. Billman appeals the dis-

trict court’s orders granting his motion under former Fed. R. Crim.

P. 35(b) and denying his motion for a new trial under Fed. R. Crim.

P. 33. Considering the grant of the motion for reduction of sen-

tence first, we have reviewed the record and the district court’s

order and find no abuse of discretion. See United States v.

Guglielmi, 929 F.2d 1001, 1004-05 (4th Cir. 1991). There is no

plain error in the district court’s consideration of the financial

evidence in granting the motion for a reduction of sentence. See

Fed. R. Crim. P. 52(b); United States v. Mitchell, 1 F.3d 235, 239

(4th Cir. 1993). Accordingly, we affirm the district court’s order

that is the subject of No. 98-6854.

In attempting to appeal the district court’s order denying his

Fed. R. Crim. P. 33 motion, No. 98-7786, Billman filed an untimely

notice of appeal. We dismiss for lack of jurisdiction. The time

periods for filing notices of appeal are governed by Fed. R. App.

P. 4. These periods 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)).

Defendants in criminal prosecutions have ten days within which to

file in the district court notices of appeal from judgments or

final orders. Fed. R. App. P. 4(b). The only exceptions to the

3 appeal period are when the district court extends the time to

appeal “[u]pon a showing of excusable neglect.” Id.

The district court entered its order on August 12, 1998;

Appellant’s notice of appeal was filed on August 26, 1998, which is

beyond the ten-day appeal period. Appellant’s failure to note a

timely appeal or obtain an extension of the appeal period leaves

this court without jurisdiction to consider the merits of Appel-

lant’s appeal. We therefore dismiss the appeal. We dispense with

oral argument because the facts and legal contentions are adequate-

ly presented in the materials before the court and argument would

not aid the decisional process.

No. 98-6854 - AFFIRMED

No. 98-7786 - DISMISSED