F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 4 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4195
(D.C. Nos. 96-CV-25-S
ORESTES L. ABREU, &
96-CR-25-S)
Defendant-Appellant. (D. Utah)
ORDER AND JUDGMENT *
Before BRORBY, McKAY, and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Orestes L. Abreu filed this appeal to seek review of the district court’s
resolution of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. On May 28, 1997, the district court granted the motion in part, vacating
convictions for use of a firearm in connection with a drug trafficking crime on the
grounds that Abreu had not “used” a firearm within the meaning of 18 U.S.C. §
924(c)(1). See Bailey v. United States , 516 U.S. 137, 143-44 (1995). In all other
respects, the court denied the § 2255 motion. The district court resentenced
Abreu during a resentencing hearing held July 15, 1997.
Proceeding pro se, Abreu filed a motion to resolve pending issues, dated
August 16, 1997, which the district court denied as moot on September 19, 1997.
He then filed a pro se notice of appeal, dated November 21, 1997, challenging his
modified sentence and also the denial of the remaining § 2255 claims. This
court’s review was hampered by the inadequacy of Abreu’s pro se filings and the
lack of a transcript of the resentencing hearing. Accordingly, we appointed the
office of the federal public defender to represent Abreu on issues related to his
resentencing. We have now received appellant's brief which has greatly assisted
the court on the issues presented.
Counsel’s brief, filed pursuant to Anders v. California , 386 U.S. 738
(1967), correctly points out that Abreu’s notice of appeal is untimely. See Fed. R.
App. P. 4(a) (establishing a sixty-day period for filing a notice of appeal in a civil
-2-
action in which the United States is a party); see also Fed. R. App. P. 4(b)
(establishing a ten-day period for filing a notice of appeal in a criminal case.)
Moreover, the motion to resolve pending issues did not toll the time for filing the
notice of appeal. See United States v. Emmons , 107 F.3d 762, 763-64 (10th Cir.
1997) (stating that a motion filed within ten days after entry of judgment is a Rule
59(e) motion to alter or amend judgment, which tolls the time period for filing the
notice of appeal; otherwise it is a Rule 60(b) motion seeking relief from
judgment, which does not toll the time period).
A timely notice of appeal is “‘mandatory and jurisdictional.’” United
States v. Davis , 929 F.2d 554, 557 (10th Cir.1991) ( quoting United States v.
Robinson , 361 U.S. 220, 224 (1960)). We are therefore without jurisdiction to
consider this appeal. Accordingly, the appeal is DISMISSED. Appellant's
counsel's motion to withdraw is granted. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
-3-