207 F.3d 928 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Steven Hirsch,    Defendant-Appellant.
No. 99-2304
In the  United States Court of Appeals  For the Seventh Circuit
Submitted October 1, 1999Decided March 23,  2000

Appeal from the United States District Court  for the Southern District of Illinois.  No. 4:96CR40094-002--J. Phil Gilbert, Chief Judge.
Before Easterbrook, Ripple, and Kanne,  Circuit Judges.
Easterbrook, Circuit Judge.


1
Following a  guilty plea to drug-related crimes,  Steven Hirsch was sentenced to 157  months' imprisonment. The sentence was  pronounced on January 29, 1999, and  docketed on February 3, 1999; any appeal  was due by February 16. Fed. R. App. P.  4(b). (February 13 was a Saturday, and  Monday, February 15, was a holiday.) A  notice of appeal was filed on May 21,  1999, more than three months late.


2
Counsel's explanation for this delay, if  true, is shocking. After imposing  sentence, a federal judge must inform the  defendant of his right to appeal and must  offer an opportunity to have the clerk of  court file a notice of appeal on  defendant's behalf. Fed. R. Crim. P.  32(c)(5). Hirsch's lawyer has stated  that, when asked whether the clerk should  file an appeal on his behalf, Hirsch  answered yes. But the clerk did nothing,  and by the time counsel realized this it  was too late.


3
This is shocking for at least two  reasons. One is the clerk's failure to  perform a ministerial act whose omission  could have serious adverse consequences  for a criminal defendant. The other is  counsel's failure to ensure that a notice  of appeal was filed. Defendants have 10  days to appeal, with an extension to 40  days available for "excusable neglect or  good cause". Fed. R. App. P. 4(b)(4). The  clerk's failure would have been "good  cause" for counsel to file a belated  appeal, so all counsel had to do was  check the docket any time within 40 days-  -but Hirsch's lawyer did not take that  simple precaution. The absence of a  docketing notice from this court would  have put a prudent lawyer on guard. Both  the Rules of Appellate Procedure and the  Circuit Rules impose duties on counsel  that begin with the notice of appeal. For  example, the appellant's lawyer must file  a docketing statement within seven days  after the notice of appeal. Circuit Rule  3(c)(1). An appellant must order any  relevant transcript within 10 days of the  notice of appeal. Fed. R. App. P.  10(b)(1). In this circuit, the  appellant's brief is due 40 days after  the appeal is docketed, Circuit Rule  31(a), so counsel must ascertain the  docketing date. Had Hirsch's lawyer taken  any steps to comply with these rules, he  would have learned that no notice of  appeal had been filed. But for  approximately 100 days after Hirsch's  sentencing, his lawyer did nothing.


4
Not until May 20, 1999, did Hirsch's  lawyer (Douglas A. Forsyth, of St. Louis,  Missouri) bestir himself on behalf of his  client. On May 20 he filed in the  district court a motion for permission to  take an untimely appeal; the next day  Forsyth filed a notice of appeal. On June  11 the district judge entered an order  granting Forsyth's motion and stating  that "the May 21, 1999, Notice of Appeal  is deemed timely." That decision is  ineffectual. Appellate Rule 4(b)(4)  provides that a district court may  "extend the time to file a notice of  appeal for a period not to exceed 30 days  from the expiration of the time otherwise  prescribed by this Rule 4(b)." Rule  26(b)(1) adds that a district court lacks  power to extend the time for a notice of  appeal, except to the extent provided in  Rule 4. Thus the maximum lawful extension  would have been to March 15, 1999, a date  long gone when Forsyth asked for extra  time. (The outer limit is March 15,  rather than March 18, because the extra  days added to an original period that  ends on a weekend or holiday are not  tacked onto the extension period.)


5
When purporting to grant Forsyth  additional time to file a notice of  appeal, the district court did not make  findings of fact concerning Forsyth's  assertion that Hirsch asked the clerk to  file a notice of appeal on his behalf. If  such a request was made, then the  district court needs to change its  procedures to ensure compliance with Rule  32(c)(5). Failure to file a notice of  appeal, after the defendant so requests  in open court, is rare and may be unique;  we have been unable to find any other  case in which judges have had to ponder  how to proceed when the clerk does not  carry out that mechanical step. One  possibility would be to declare that what  should have been done will be treated as  done; then we would proceed as if a  notice of appeal had been filed on  January 29, 1999. That approach would  protect defendants from bureaucratic  errors, but it could not be reconciled  with the Rules of Appellate Procedure,  which require an actual notice of appeal  rather than a virtual one, or with the  principle that a timely notice of appeal  is essential to appellate jurisdiction.  Browder v. Director, Department of  Corrections, 434 U.S. 257, 264 (1978).  Treating as done whatever should have  been done would demolish the Rules'  timetables. It would, for example, treat  a client's request to his lawyer to file  a notice of appeal as getting the appeal  under way, whether the lawyer filed the  notice or not. Even limiting the approach  to public officials would require many  rules and doctrines to be rewritten.  Consider, for example, Fed. R. Crim. P.  29(c), which limits to seven days the  time a defendant has to file a motion for  acquittal (and also limits the period  within which the judge may extend that  time). Carlisle v. United States, 517  U.S. 416 (1996), holds that the court  lacks authority to grant a motion filed  one day late, even on the assumption that  it should have been filed earlier and  that the delay did not cause prejudice. A  principle that the court will treat a  motion (or notice of appeal) as filed  when it should have been filed would  require a different outcome in Carlisle  and many similar cases. Even the "unique  circumstances doctrine," an approach that  treats some steps in the appellate  process as if they had been done on time,  applies only when a court expressly  assures counsel or a litigant that a step  has been taken correctly, Osterneck v.  Ernst & Whinney, 489 U.S. 169, 178-79  (1989), and no express assurance is  evident here.


6
Unsettling as it is to disadvantage  Hirsch because of what may have been a  clerical error, we have no choice but to  dismiss this appeal. But just as in  United States v. Marbley, 81 F.3d 51 (7th  Cir. 1996), dismissal does not bring  proceedings to a close; quite the  contrary. Strict enforcement of a rule  meant to expedite appellate resolution  will breed delay, for Hirsch is not out  of options. He may now file a motion  under 28 U.S.C. sec.2255, contending that  Forsyth's failure to ensure that the  clerk followed through deprived Hirsch of  the assistance of counsel guaranteed by  the sixth amendment. See Roe v. Flores-  Ortega, ___ U.S., 120 S.Ct. 1029, ___ L.Ed.2d ___ (2000); United States v. Nagib, 56 F.3d  798 (7th Cir. 1995); Castellanos v.  United States, 26 F.3d 717 (7th Cir.  1994). If the district court finds that  Forsyth was asleep on the job, then the  court must vacate the judgment and  reimpose the sentence to permit an  appeal.


7
Of course, the judge cannot overlook the  possibility that Hirsch did not make a  timely request for an appeal on his  behalf. If he did not make a request in  open court, or to counsel within 10 days,  then relief is not available under  sec.2255. See United States v. Nagib, 44  F.3d 619 (7th Cir. 1995); United States  v. Mosley, 967 F.2d 242 (7th Cir. 1992).


8
The transcript of the sentencing  proceedings, which was prepared at our  request, does not jibe with  Forsyth'srepresentations to the district  court (or to us). The district judge  informed Hirsch: "If you so request, a  notice of appeal will be docketed by the  clerk at this time. Do you understand  that?" Hirsch answered "yes" but did not  go on to make the request. If the  transcript is in error and Hirsch did  make a timely request in open court, or  if he asked Forsyth within 10 days to  file an appeal, then Hirsch has received  ineffective assistance of counsel. But if  there was no request within 10 days in or  out of court, then Hirsch cannot change  his mind later and blame his lawyer. See  Flores-Ortega, ___ U.S. at ____ __ ____, 120 S.Ct. 1029.


9
We observed in Marbley that this multi-  step process poorly serves the interests  of both defendants and the judicial  system. We are sending this opinion to  the Judicial Conference's Standing  Committee on Rules of Practice and  Procedure so that the bodies charged with  proposing changes to the federal rules  may consider whether it would be prudent  to amend either Criminal Rule 32(c)(5) or  Appellate Rule 4(b)(4) to provide for the  possibility that the clerk will fail to  comply with a request to file a notice of  appeal. Perhaps it would be beneficial to  amend Appellate Rule 4(b)(4) to provide  that an appeal is timely if, within 10  days after being sentenced, a criminal  defendant informs either court or counsel  of his desire to appeal. Our function  today, however, is not to draft new rules  but to implement the rules as they exist.  Under those rules, Hirsch's appeal must  be dismissed for want of jurisdiction.

