                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-3658
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal form the United States
      v.                                  * District Court for the
                                          * Western District of Missouri.
Byron Spears,                             *
                                          *      [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                              Submitted: October 19, 2005
                                 Filed: October 26, 2005
                                  ___________

Before MELLOY, MAGILL, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       In this criminal case, Byron Spears appeals the district court’s1 judgment
denying his motion for a downward departure based on poor health. We lack
jurisdiction, however, because Spears filed his notice of appeal well beyond ten days
after the order denying relief, and even if his pleading could be construed as civil in
nature, his notice of appeal was filed more than sixty days after the dispositive ruling.
See Fed. R. App. P. 4(a)(1)(B); 4(b)(1)(A); United States v. Stute Co., 402 F.3d 820,
822 (8th Cir. 2005) (timely notice of appeal is mandatory and jurisdictional).

      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
Accordingly, the motion for appointment of counsel is denied, and we dismiss this
appeal. See 8th Cir. R. 47A(a).
                      ______________________________




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