United States v. Alvin L. McCarver III

165 F.3d 34

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Alvin L. MCCARVER III, Defendant-Appellant.

No. 96-3592.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 20, 1998. * Decided Oct. 20, 1998.

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 92-CR-146. James T. Moody, Judge.

Before Hon. WALTER J. CUMMINGS, Hon. JOEL M. FLAUM, Hon. FRANK H. EASTERBROOK, Circuit Judges.

ORDER 1

Alvin L. McCarver III agreed to testify as a government witness at a trial in exchange for a reduction in his sentence on two separate offenses. As a result, the government filed a motion under Fed.R.Crim.P. 35(b) requesting that McCarver's sentence be reduced. However, the government later moved to withdraw the Rule 35(b) motion on grounds that McCarver had testified falsely at a previous trial, and had not candidly admitted the prior false testimony at the most recent trial. McCarver objected to the government's motion to withdraw. On April 2, 1996, the district court overruled McCarver's objections and allowed the government to withdraw its Rule 35(b) motion. On July 19, 1996, McCarver filed a motion for reconsideration, which the district court denied on July 23, 1996. On August 5, 1996, McCarver filed a second motion for reconsideration, which the district court denied on September 30, 1996. On October 11, 1996, McCarver filed a notice of appeal.

2

We lack jurisdiction over this appeal, because McCarver did not file a timely notice of appeal. Under Fed. R.App. P. 4(b), McCarver had ten days to file a notice of appeal after the district court entered its order on April 2, 1996. He did not do so. McCarver did not file a motion to reconsider within this ten-day period, either. If he had, he would have been able to file his notice of appeal after the motion to reconsider was decided. United States v. Kalinowski, 890 F.2d 878, 880-81 (7th Cir.1989) (citations omitted). Therefore, we must DISMISS the appeal.

* After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed. R.App. P. 34(e); Cir. R. 34(f)