United States v. Mellen

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2001
• Docket: 00-31041
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31041 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE MELLEN, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CR-87 -------------------- April 11, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

George Mellen Jr. seeks to appeal his guilty-plea conviction

for conspiracy to commit arson. This court must examine the

basis for its appellate jurisdiction sua sponte, if necessary.

See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely

notice of appeal is a mandatory precondition to the exercise of

appellate jurisdiction. See United States v. Merrifield, 764

F.2d 436, 437 (5th Cir. 1985).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-31041 -2-

Mellen did not file a notice of appeal within 10 days of the

entry of the district court’s judgment, nor did he file within

the additional 30-day window for excusable neglect. See Fed.

R. App. P. 4(b)(1) and (4). His notice of appeal was filed in

excess of eight months after the district court rendered judgment

in his case and is thus insufficient to confer appellate

jurisdiction on this court to review his guilty-plea conviction.

See id.; Merrifield, 764 F.2d at 437; see also United States v.

Awalt, 728 F.2d 704, 705 (5th Cir. 1984). To the extent that

Mellen seeks to appeal the district court’s denial of his

postjudgment motion to dismiss the indictment, he has “appealed

from the denial of a meaningless, unauthorized motion.” United

States v. Early, 27 F.3d 140, 141 (5th Cir. 1994). The Federal

Rules of Criminal Procedure do not authorize the postjudgment

motion practice employed in this case. Accordingly, the appeal

is DISMISSED for lack of jurisdiction.

APPEAL DISMISSED.