*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.

PUBLISH

UNITED STATES COURT OF APPEALS

Filed 2/4/97

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 96-1277

ROBERT MCMILLAN,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 92-CR-154)

Submitted on the briefs:*

Henry L. Solano, United States Attorney, Robert T. Kennedy, Assistant U.S. Attorney,

and John M. Hutchins, Assistant U.S. Attorney, Mountain States Drug Task Force,

Denver, Colorado, for appellee.

Neil M. Schuster, Miami Beach, Florida, for defendant-appellant.
1Fed. R. Crim. P. 35(b) provides:

The court, on motion of the Government made within one year after

the imposition of the sentence, may reduce a sentence to reflect a

defendant's subsequent, substantial assistance in the investigation or

prosecution of another person who has committed an offense, in accordance

with the guidelines and policy statements issued by the Sentencing

Commission pursuant to section 994 of title 28, United States Code. The

court may consider a government motion to reduce a sentence made one 

year or more after imposition of the sentence where the defendant's

substantial assistance involves information or evidence not known by the

defendant until one year or more after imposition of sentence. The court's

authority to reduce a sentence under this subsection includes the authority to

reduce such sentence to a level below that established by statute as a

minimum sentence.

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Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

ANDERSON, Circuit Judge.

Robert W. McMillan appeals from the denial of the government’s Fed. R. Crim. P.

35(b)1 motion to reduce his fines in two cases. McMillan was charged in the Eastern

District of Louisiana (Case No. 92-CR-154) with one count of engaging in a continuing

criminal enterprise in violation of 21 U.S.C. § 848 and one count of conspiracy to

distribute MDMA (ecstasy) in violation of 21 U.S.C. §§ 841, 846. He was also charged

by indictment in the District of Colorado (Case No. 91-CR-245) with conspiracy to

possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841, 846. He
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pleaded guilty to these charges and was sentenced for all offenses in the District of

Colorado on July 29, 1992, receiving 144 months imprisonment and a $150,000 fine for

case number 92-CR-154, and 144 months imprisonment and a $75,000 fine for case

number 91-CR-245, the terms of imprisonment to run concurrently.

Based on McMillan’s cooperation with law enforcement officials, the district court

granted the government’s initial Rule 35(b) motion, reducing McMillan’s term of

imprisonment to ninety-six months. The government filed a second Rule 35(b) motion to

reduce further McMillan’s term of imprisonment, eliminate the $75,000 fine imposed in

case number 91-CR-245, and reduce the $150,000 fine in case number 92-CR-154 to

$100,000. Appellant’s App. at 26. McMillan filed a response to this motion, seeking

greater reductions to his prison term and fines than those proposed by the government. 

The district court determined that McMillan provided substantial assistance involving

information or evidence developed one year after imposition of the sentence, and reduced

his term of imprisonment to seventy-two months. Id. at 33-34 (Order for Second

Reduction of Sentence). However, the district court also ruled on May 20, 1996: “The

court’s authority to change a fine is not provided for in Rule 35(b) but is controlled by 18

U.S.C. § 3573 and may be invoked by a petition for remission under that statutory

authority. Accordingly, to the extent that the motion seeks the reduction of fine it is

denied as procedurally incorrect.” Id. at 36 (Order Denying Motion to Reduce Fine).
2

 Fed. R. App. P. 4(b) provides in relevant part:

In a criminal case, a defendant shall file the notice of appeal in the district

court within 10 days after the entry either of the judgment or order appealed

from, or of a notice of appeal by the Government.

. . . .

A judgment or order is entered within the meaning of this subdivision when

it is entered on the criminal docket. Upon a showing of excusable neglect,

the district court may--before or after the time has expired, with or without 

motion and notice--extend the time for filing a notice of appeal for a period 

not to exceed 30 days from the expiration of the time otherwise prescribed

by this subdivision.

3See Appellant’s App. at 50. We reserved judgment on the jurisdictional issue,

and we decide it here. See Appellant’s App. at 55.

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On June 3, 1996, McMillan filed a notice of appeal from the district court’s order

denying reduction of the fines, three days past the ten-day deadline established by Fed. R.

App. P. 4(b).2

 On June 26, this court entered a show cause order, instructing the parties to

file memorandum briefs discussing whether the untimely notice precludes this court’s

jurisdiction.3 On July 5, more than forty days after entry of the order being appealed,

McMillan filed a motion in the district court to extend the time for filing his appeal,

arguing that there was excusable neglect for his untimely notice based on inherent delays

in the mail and the difficulty of communicating with an incarcerated defendant. See

Appellant’s App. at 42-44. The district court found excusable neglect and granted the

motion. Id. at 47-48.
4While not discussed by the parties, we have jurisdiction to hear McMillan’s

appeal from denial of the government’s motion because McMillan claims injury from the

court’s decision. See United States v. McAndrews, 12 F.3d 273, 278 (1st Cir. 1993). We

also agree with the majority of circuits that jurisdiction to hear appeals from the

resolution of a Rule 35(b) motion is governed by 18 U.S.C. § 3742. Compare United

States v. Manella, 86 F.3d 201, 202-03 (11th Cir. 1996) (holding § 3742 provides

jurisdiction over appeals from decisions on Rule 35(b) motions); United States v. Doe, 93

F.3d 67, 67-68 (2d Cir. 1996) (same); United States v. Arishi, 54 F.3d 596, 599 (9th Cir.

1995) (same); and United States v. Pridgen, 64 F.3d 147, 148-49 (4th Cir. 1995) (same);

with McAndrews, 12 F.3d at 277 (holding appealability from order concerning Rule 35(b)

motion is governed by 28 U.S.C. § 1291). Because the district court held it had no

jurisdiction to reduce the fines, we construe McMillan’s claim as one that his sentence

was imposed in violation of law, reviewable under § 3742(a)(1). See United States v.

Flanagan, 87 F.3d 121, 125 (5th Cir. 1996) (holding district court’s determination that it

lacked authority to depart provided jurisdiction under § 3742).

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We agree with the parties that this court has jurisdiction to hear this appeal despite

McMillan’s untimely notice of appeal. In United States v. Lucas, 597 F.2d 243, 245

(10th Cir. 1979), we held that a defendant who filed his notice of appeal within the Rule

4(b) thirty-day extension period may obtain relief by showing excusable neglect

notwithstanding his failure to file a motion seeking such relief within that same time

frame. See also United States v. Andrews, 790 F.2d 803, 806 (10th Cir. 1986). Because

McMillan filed his notice of appeal within the thirty-day extension period, and because

the district court subsequently determined there was excusable neglect, this court has

appellate jurisdiction.4

We review de novo the district court’s determination that it had no jurisdiction

under Rule 35(b) to reduce fines, FDIC v. Hulsey, 22 F.3d 1472, 1479 (10th Cir. 1994),
5The district court mistakenly stated that its authority to correct a fine was

controlled by 18 U.S.C. § 3573, and not by rule 35(b). Section 3573 provides for

modification or remission of a fine “[u]pon petition of the Government showing that

reasonable efforts to collect a fine or assessment are not likely to be effective . . . .” The

government has not made such a petition or allegation in this case, and § 3573 does not

apply.

6For example, 21 U.S.C. § 848 provides: “Any person who engages in a

continuing criminal enterprise shall be sentenced to a term of imprisonment which may

not be less than 20 years and which may be up to life imprisonment, to a fine . . . , and to

the forfeiture prescribed . . . .” (emphasis added). See also 21 U.S.C. § 841(b)(1)(C)

(“shall be sentenced to . . . a fine”).

7While these cases were decided under the prior version of Rule 35(b), we find no

indication that the current version of Rule 35(b) has limited the court’s jurisdiction to

reduce fines.

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and we agree with the government and the defendant that the district court erred.5

 Rule

35(b) allows a district court to reduce a sentence to reflect a defendant’s substantial

assistance in the prosecution of others in accordance with the Sentencing Guidelines and

policy statements. The Sentencing Guidelines clearly include fines as a type of criminal

sentence. See USSG §4A1.2(a) (defining prior sentence as "any sentence previously

imposed upon adjudication of guilt") (emphasis added); United States v. Gallego, 905

F.2d 482, 483 (1st Cir. 1990). The statutes under which McMillan was convicted

similarly include fines as a component of the sentence.6

 Also, courts have reduced fines

under Rule 35(b) in other cases.7 See, e.g., United States v. Glantz, 884 F.2d 1483, 1488

(1st Cir. 1989) (holding motion to modify fine should have been considered part of Rule

35(b) motion to reduce sentence); United States v. Linker, 920 F.2d 1, 2 (7th Cir. 1990)

(stating defendant had right to request a remission of fine under Rule 35(b)).
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For the foregoing reasons, we VACATE the decision of the district court and

REMAND for consideration of that portion of the government’s Rule 35(b) motion

seeking reduction of fines.