United States v. George v. Janovich

688 F.2d 1227, 1982 U.S. App. LEXIS 17629

Opinion

PER CURIAM:

Defendant appeals from the denial of his Rule 35 motion to reduce his sentence and from the denial of the succeeding motion to reconsider. The appeal is untimely and we dismiss for lack of jurisdiction.

Defendant filed his notice of appeal more than ten days after his Rule 35 motion was denied. United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977). His motion for reconsideration did not toll the ten day period because it was filed 21 days following denial. The notice of appeal did not comply with Fed.R.App.P. 4(b). Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978).

The defendant’s notice of appeal from the denial of his untimely motion to reconsider is unavailing. The district court lacked jurisdiction to consider the motion because it was filed more than 120 days after his sentence became final. United States v. Hetrick, 644 F.2d 752, 756 (9th Cir. 1980).

We dismiss.