*This order and judgment is not binding precedent, except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 Tenth Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 9/18/96

FOR THE TENTH CIRCUIT

______

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

v. ) No. 96-7064

) (D.C. No. CR-90-43-1)

EDMOND LEON LEOPARD, also known as ) (E. Dist. of Oklahoma)

“Red” Leopard, )

)

Defendant-Appellant. )

______

ORDER AND JUDGMENT*

______

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______

After examining the briefs and the 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); Tenth Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Edmond Leon Leopard (Leopard), appearing pro se and having

been granted leave to proceed in forma pauperis, appeals from the

district court’s Minute Order of April 22, 1996, denying his Motion

to File Out of Time Appeal.

On August 7, 1990, Leopard was found guilty, following a jury
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trial, of five counts involving the manufacturing of

methamphetamine and possession of a firearm. On October 16, 1990,

he was sentenced to 327 months imprisonment on Counts I and III,

and 127 months imprisonment on Counts II and V, to run

concurrently. He was sentenced to 60 months imprisonment on Count

IV, to run consecutively. Leopard’s convictions and sentences were

affirmed by United States v. Leopard, 936 F.2d 1138 (10th Cir.

1991).

On July 24, 1991, Leopard filed a Motion to Modify Term of

Imprisonment pursuant to 18 U.S.C. § 3582(c)(2). On October 24,

1995, the district court denied his motion in a minute order.

On March 25, 1996, Leopard wrote a letter to the clerk of the

district court inquiring about the status of his § 3582 motion. On

April 6, 1996, he received a response indicating that his motion

had been denied by the Minute Order entered October 24, 1995. 

On April 18, 1996, Leopard filed a Motion to File Out of Time

Appeal. In his motion, he stated that he never received notice of

the district court’s October 24, 1995, Minute Order denying his

Motion to Modify Term of Imprisonment. On April 22, 1996, the

district court denied Leopard’s motion to file an appeal out of

time. On May 2, 1996, Leopard timely initiated this appeal of the

district court’s denial of his motion to file an appeal out of

time.

On appeal, Leopard contends that the district court erred in
1 Leopard’s Motion to Modify Term of Imprisonment is

considered a criminal case for purposes of Fed. R. App. P. 4

since it was entered on the criminal docket. Fed. R. App. P.

4(b) (“A judgment or order is entered within the meaning of this

subdivision when it is entered on the criminal docket.”).

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denying his motion to file an out of time appeal when he never

received a copy of the October 24, 1995, order. In support of his

motion, Leopard attaches a copy of a May 7, 1996, form indicating

when prison officials reviewed the Legal Log Book where Leopard is

incarcerated there were no entries of legal mail addressed to

Leopard between October 25, 1995, and November 16, 1995. 

We review the district court’s denial of a motion for leave to

file an untimely notice of appeal on the grounds of excusable

neglect under an abuse of discretion standard. Chanute v. Williams

Natural Gas Co., 31 F.3d 1041, 1045 (10th Cir. 1994), cert. denied,

___ U.S. ___ (1995).

It is well established that an appellate court acquires

jurisdiction over an appeal only upon the timely filing of a notice

of appeal and that this requirement is mandatory and

jurisdictional. See Smith v. Barry, 502 U.S. 244, 245 (1992);

Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255,

1256 (10th Cir. 1990). The time to file a notice of appeal is set

out in Federal Rule of Appellate Procedure 4 which states that

“[i]n a criminal case,1 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.” In addition, it provides that
2 We need not decide if the doctrine of unique

circumstances would allow a late filed notice of appeal because

the doctrine only applies where an affirmative action by the

court has misled the appellant which is not the case here. See

In re Weston, 18 F.3d 860, 863 (10th Cir. 1994); Stauber v.

Kieser, 810 F.2d 1, 1-2 (10th Cir. 1982) (unique circumstances

existed where appellants relied to their detriment on statements

and actions of the district court and where it would work a great 

hardship on appellants to dismiss the appeal as untimely).

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“[u]pon a showing of excusable neglect, the district court may . .

. 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.” Fed. R. App. P. 4(b). However, the district

court cannot enlarge the filing period for a notice of appeal

beyond the 30 days provided for in Rule 4. Fed. R. App. P. 26(b)

(“the court may not enlarge the time for filing a notice of appeal

. . . except as specifically provided by law.”). See Certain

Underwrites at Lloyds of London, 896 F.2d at 1255.2

The district court’s order denying Leopard’s Motion to Modify

Term of Imprisonment was entered on October 24, 1995. Therefore,

Leopard had 40 days or until December 3, 1995, including all

allowable extensions, to file his notice of appeal and/or any

requests for an extension of time within which to file. However,

Leopard did not file a motion for an extension of time until April

18, 1996; over five months past the final deadline. 

The district court did not have the power or authority to

grant Leopard’s motion to file an untimely notice of appeal at such

a late date. Accordingly, we hold that the district court did not
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abuse its discretion in denying Leopard’s Motion to File Out of

Time Appeal.

AFFIRMED.

Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge