United States v. Jonathan Idema

42 F.3d 1386

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 17, 1994
• Docket: 94-5696
• Status: Unpublished

Opinion

42 F.3d 1386

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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.
Jonathan IDEMA, Defendant Appellant.

No. 94-5696.

United States Court of Appeals, Fourth Circuit.

Submitted Nov. 17, 1994
Decided Dec.7, 1994.

Jonathan Idema, Appellant Pro Se. Robert Daniel Boyce, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, NC, for Appellee.

E.D.N.C.

DISMISSED.

Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

Jonathan Idema appeals from the district court's order denying his motion for presentence release. The district court's order was entered on July 11, 1994. Appellant's notice of appeal, dated September 7, 1994, was filed on September 12, 1994.

Rule 4(b) of the Federal Rules of Appellate Procedure requires that a notice of appeal in a criminal case be filed within ten days after the entry of the order appealed from. This time period may be extended for thirty additional days upon a showing of excusable neglect. However, once this combined forty-day period expires, the time for filing a notice of appeal may not be extended. United States v. Cheek, 761 F.2d 461, 462 (8th Cir.1985). Appellant submitted his notice of appeal to prison authorities well beyond the forty-day period.*

The time period established by Rule 4(b) is mandatory and jurisdictional. United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir.1986). Appellant's failure to note a timely appeal deprives this Court of jurisdiction to consider this case. We therefore dismiss the appeal. 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.

DISMISSED

* For the purposes of this appeal, we assume that the date appellant placed on the notice of appeal is the earliest date he would have submitted it to prison authorities