United States v. Nelson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-6099

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANKLYN G. NELSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:99-cr-154-5-MU)

Submitted: September 28, 2006 Decided: October 5, 2006

Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Franklyn G. Nelson, Appellant Pro Se. Thomas Gray Walker, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Franklyn G. Nelson seeks to appeal either the district

court’s order entering judgment in his criminal case or a

subsequent order denying his motion to modify his sentence. We

dismiss the appeal for lack of jurisdiction because the notice of

appeal was not timely filed as to either order.

A notice of appeal from a criminal judgment must be filed

within ten days of the entry of judgment. Fed. R. App. P.

4(b)(1)(A)(I). An additional thirty days are permissible upon

showing of excusable neglect. These appeal periods are mandatory

and jurisdictional. Smith v. Barry, 502 U.S. 244, 248 (1992).

The district court’s judgment order was entered on the

docket on December 11, 2000, and the order denying the motion for

modification of sentence was entered on August 17, 2001. The

notice of appeal was filed on January 19, 2006. Because Nelson’s

notice of appeal was filed beyond the appeal period and the

excusable neglect period as to both orders, we 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

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