                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 8 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                  Nos. 96-3019 & 96-3277
 v.
                                                   (D.C. No. 94-10123-2)
                                                         (D. Kan.)
 PIYARATH S. KAYARATH, a/k/a
 Be, a/k/a Be Nouanley,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, 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); 10th Cir. R. 34.1.9. 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        This order and judgment is not binding precedent except under the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.
      Mr. Kayarath directly appeals two orders of the United States District Court

of the District of Kansas. We exercise jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). These appeals are consolidated under Fed. R. App. P. 3(b).

We remand No. 96-3019 to the district court for a determination of excusable

neglect, and we dismiss No. 96-3277.



      Mr. Kayarath pleaded guilty to multiple robbery and weapons possession

charges under 18 U.S.C. § 1951 and § 924(c). On December 20, 1995, he was

sentenced to a term of 330 months. Also on that date, the United States filed a

motion pursuant to the U.S. Sentencing Guidelines Manual § 5K1.1 and 18 U.S.C.

§ 3553(e) to reduce Mr. Kayarath's sentence to a period of 288 months for

substantial assistance. At sentencing, the district court took the § 5K1.1 motion

under advisement until the outcome of another case involving Mr. Kayarath. The

district court entered judgment in Mr. Kayarath's case on December 27, 1995.



      On January 9, 1996, Mr. Kayarath's attorney filed an untimely notice of

appeal (No. 96-3019) from the district court's judgment. Mr. Kayarath's attorney

states he miscalculated the filing deadline by using the Fed. R. Crim. P. 45 time

computation rather than the correct time computation found in Fed. R. App. P. 26.




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      On April 3, 1996, this court partially remanded No. 96-3019 to the district

court to allow Mr. Kayarath to file a motion for an extension of time to file a

notice of appeal, and allow the district court to determine if Mr. Kayarath made a

showing of excusable neglect necessary for this court to conclude whether it has

jurisdiction. Mr. Kayarath filed a motion for an extension of time in which to file

a notice of appeal with the district court.



      On May 16, 1996, the district court failed to rule on the motion but entered

an order noting the § 5K1.1 motion was still pending and suggested this court

dismiss No. 96-3019 and remand for a ruling on the § 5K1.1 motion. The district

court stated in its order it erred in not ruling on the § 5K1.1 motion prior to

sentencing. 1



      On July 23, 1996, this court again partially remanded No. 96-3019 to the

district court to rule on the § 5K1.1 motion and Mr. Kayarath's the motion for an

extension of time. The district court ruled on the § 5K1.1 motion reducing Mr.

Kayarath's sentence to 240 months imprisonment in an amended judgment entered



      1
        The district court found although the Tenth Circuit has not ruled on the
issue before, other circuits have held it is improper to take a § 5K1.1 motion
under advisement (citing United States v. Mittelstadt, 969 F.2d 335 (7th Cir.
1992); United States v. Howard, 902 F.2d 894, 896-97 (11th Cir. 1990)).

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on August 20, 1996. The court did not rule on the motion for an extension of

time. Mr. Kayarath subsequently filed a timely appeal, No. 96-3277, from his

amended sentence. In an order on filed October 10, 1996, this court consolidated

Nos. 96-3019 and 96-3277 for the purposes of briefing and submission.



      The following three issues are raised on appeal: (1) does this court have

jurisdiction over No. 96-3019 without the district court's determination of

excusable neglect; (2) was Mr. Kayarath's counsel ineffective in securing the least

possible sentence; and (3) does Mr. Kayarath provide grounds for us to review his

sentence (No. 96-3277).



                                   No. 96-3019

      Pursuant to Fed. R. App. P. 4(b), a defendant must file a notice of appeal

within ten days from the entry of his judgment on the criminal docket. However,

with or without a motion and upon a showing of excusable neglect, the district

court may grant an extension of time to file a notice of appeal not to exceed thirty

days from the expiration of the ten day period otherwise allowed under Rule 4(b).

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,




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361 U.S. 220, 224 (1960)). We are therefore without jurisdiction if Mr.

Kayarath's notice of appeal is not timely filed.



      Mr. Kayarath filed his notice of appeal for No. 96-3019 on January 9, 1996.

His judgment was entered on the criminal docket on December 27, 1995.

Therefore, Mr. Kayarath filed his notice of appeal thirteen days after his criminal

judgment was entered. Consequently, his notice of appeal was filed beyond the

ten day limit set forth under Rule 4(b) but within the thirty-day permissible

extension period allowed if the district court finds the delay was caused by

excusable neglect. See Fed. R. App. P. 4(b).



      A defendant who has filed a notice of appeal within the thirty-day

permissible extension period, should have the opportunity to seek relief by a

showing of excusable neglect. See United States v. Lucas, 597 F.2d 243, 245

(10th Cir. 1979). In two orders 2 this court partially remanded No. 96-3019 to the

district court to determine if Mr. Kayarath has shown excusable neglect to extend

the time to file a notice of appeal. The district court failed to make its

determination as requested in both orders. This court is without jurisdiction over

this appeal until the district court determines if Mr. Kayarath has made a


      2
          Orders filed April 3, 1996 and July 23, 1996.

                                          -5-
sufficient showing of excusable neglect necessary to establish Mr. Kayarath's

notice of appeal was timely filed.



      Mr. Kayarath requests this court to rule his attorney's misreading of the

Federal Rules of Appellate Procedure constituted excusable neglect as a matter of

law. However, because a finding of excusable neglect is dependent on the facts

of each case, without a hearing allowing full presentation of the facts we are

unwilling to conclude an attorney's mistake constitutes excusable neglect as a

matter of law. See, e.g., Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership, 507 U.S. 380, 394 (1993); City of Chanute v. Williams Natural Gas

Co., 31 F.3d 1041, 1046 (10th Cir. 1994), cert. denied, 513 U.S. 1191 (1995);

Buckley v. United States, 382 F.2d 611, 615 (10th Cir. 1967), cert. denied, 390

U.S. 997 (1968).



      Mr. Kayarath also contends the jurisdictional issue in No. 96-3019 is moot

because his original judgment was not a final order and his second timely appeal

of his revised sentence, No. 96-3277, would include any issues raised in the first

appeal. We disagree. First, Mr. Kayarath's first criminal judgment was a final

appealable order. See United States v. Mendes, 912 F.2d 434, 437 (10th Cir.

1990) (holding an erroneous or illegal sentence is a final judgment for purposes


                                         -6-
of appeal). Second, any issues intended to be raised in this first appeal, which

never reached the merits, must be raised in his direct appeal of the judgment or be

waived. Id. (holding the grant on remand does not reopen the order appealed

from and the first order cannot be challenged in an appeal of a second final

order). In addition, our jurisdiction over No. 96-3277 is limited to the scope of

our remand, to rule on the § 5K1.1 motion. See United States v. Webb, 98 F.3d

585, 589 (10th Cir. 1996), cert. denied, 117 S. Ct. 1097 (1997). Consequently,

the jurisdictional issue of Mr. Kayarath's first appeal is not moot.



                                    No. 96-3277

      Mr. Kayarath contends his sentence is too long and his counsel was

ineffective in securing the least possible sentence. We dismiss Mr. Kayarath's

ineffective assistance of counsel claim because it is not reviewable on direct

appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995).

Such claim should be brought in a collateral proceeding. See id.



      With respect to Mr. Kayarath's claim his sentence is too long, he may

appeal his sentence if he alleges the sentence was imposed in violation of the law

or as a result of an incorrect application of the U.S. Sentencing Guidelines. See

18 U.S.C. § 3742(a). Mr. Kayarath claims neither. Mr. Kayarath was originally


                                          -7-
sentenced to a total of 330 months, within the sentencing range imposed under the

Guidelines. After remand, the district court granted the § 5K1.1 motion and

reduced his sentence to an aggregate 240 month sentence, below the sentence the

United States had recommended in its motion. When a district court grants a

motion under § 5K1.1 and departs downward, the degree of departure may not be

reviewed by this court absent an incorrect application of the sentencing

guidelines. See United States v. Bromberg, 933 F.2d 895, 896 (10th Cir. 1991).

Therefore, Mr. Kayarath's appeal should be dismissed since we have no

jurisdiction to entertain it. 3



       Accordingly, we REMAND No. 96-3019 to the district court to rule on Mr.

Kayarath's motion to extend the time to file a notice of appeal, and DISMISS No.

96-3277.



                                      Entered for the Court

                                      WADE BRORBY
                                      United States Circuit Judge



       3
        Mr. Kayarath's counsel filed an Anders brief requesting permission to
withdraw because Mr. Kayarath's claim his sentence was too long was wholly
frivolous. Following Anders v. California, 386 U.S. 738, 744 (1967), Mr.
Kayarath's counsel requests permission to withdraw from this case. We grant the
permission to withdraw.

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