United States v. Zuniga ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-4468
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROQUE ZUNIGA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. James R. Spencer, District Judge.
(CR-96-60)
Submitted: December 19, 1996 Decided: January 3, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Roque Zuniga, Appellant Pro Se. David T. Maguire, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's order dismissing
as untimely his appeal from his conviction and sentence imposed by
a magistrate judge. We have reviewed the record and the district
court's opinion and find no reversible error. An appeal from a
judgment of conviction or sentence by a magistrate judge must be
noted within ten days after entry of the judgment. Fed. R. Crim. P.
58(g)(2)(B). The time periods for filing notices of appeal are
"mandatory and jurisdictional." United States v. Robinson, 361 U.S.
220, 229 (1960) (applying Fed. R. App. P. 4(b)).
The magistrate judge entered his order on April 30, 1996;
Appellant's notice of appeal was filed on May 28, 1996. Because
Appellant failed to note a timely appeal or obtain an extension of
the appeal period, the district court was without jurisdiction to
consider the merits of Appellant's appeal.1 Accordingly, we deny
Appellant's motion for transcripts at government expense and affirm
the district court's dismissal of Appellant's appeal.2 We dispense
with oral argument because the facts and legal contentions are
1
We note that Rule 58(g) does not provide for an additional
thirty days within which to note an appeal upon a showing of
excusable neglect. Compare Fed. R. Crim. P. 58(g)(2)(B) with Fed.
R. App. P. 4(b). See United States v. Burgess, 602 F. Supp. 1329,
1331 (E.D. Va. 1985) (holding that Fed. R. App. P. not intended to
govern appeals to district court from magistrate judge's judgments
of conviction).
2
Appellant's motion to expedite is now moot and is dismissed
for that reason.
2
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
3