                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0641n.06

                                           No. 08-4253                                    FILED
                                                                                      Oct 07, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT     FOR     THE
v.                                                       )         NORTHERN DISTRICT OF
                                                         )         OHIO
LUIS ESCOBEDO-SALINAS,                                   )
                                                         )                  OPINION
       Defendant-Appellant.                              )




BEFORE:        MARTIN and McKEAGUE, Circuit Judges; and LUDINGTON, District
               Judge.*

       PER CURIAM. Defendant Luis Escobedo-Salinas pleaded guilty to the charge of illegal

re-entry after being deported, in violation of 8 U.S.C. § 1326. He was sentenced on August 11, 2008

to a prison term of 60 months. The judgment of sentence was entered on August 12, 2008.

Defendant filed his notice of appeal on September 4, 2008, contending the sentence is unreasonable.

       Under Fed. R. App. P. 4(b)(1)(A), as it existed when defendant was sentenced, defendant was

required to file his notice of appeal within 10 days after entry of the judgment, or, in other words,

not later than August 26, 2010.1 His notice of appeal was not filed within this period. Nor did


       *
       Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.
       1
       Effective December 1, 2009, the Rule 4(b)(1)(A) time period was changed to 14 days.
However, prior to December 1, 2009, the applicable 10-day period was calculated without counting
intermediate Saturdays, Sundays and holidays, per Fed. R. App. P. 26(a), a method that also
No. 08-4253
United States v. Escobedo-Salinas

defendant seek and obtain an extension of the 10-day period in the district court based on a showing

of excusable neglect or good cause, as permitted by Rule 4(b)(4). Further, although defendant was

confined at the Northeast Ohio Correctional Center in Youngstown, Ohio, at the time the notice of

appeal was filed, he has not made the showing required under Rule 4(c)(1) that he deposited the

notice of appeal in the Correctional Center’s internal mail system on or before August 26, 2010.

       It follows that defendant’s notice of appeal was not timely filed. Because the time limit

prescribed by Rule 4(b) is mandatory and jurisdictional, we lack jurisdiction to hear defendant’s

appeal. United States v. Dotz, 455 F.3d 644, 647 (6th Cir. 2006). Lacking jurisdiction, we have no

alternative but to dismiss the appeal. Accordingly, defendant’s appeal is hereby DISMISSED.




effectively afforded defendant 14 calendar days within which to file notice of appeal.

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