* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. 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 Okl ahoma) “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 t herefore ordered submitted without oral argument. Edmond Leon Leopard (Leopard), appearing pro se and having been granted leave to proceed informa pauperis , appeals from the district court’s Minute Order of April 22, 1996, de nying his Motion to File Out of Time Appeal. On August 7, 1990, Leopard was found guilty, follow ing a jury- 2 -

trial, of five counts involving the manufacturing o f methamphetamine and possession of a firearm. On Oc tober 16, 1990, he was sentenced to 327 months imprisonment on Coun ts I and III, and 127 months imprisonment on Counts II and V, to run concurrently. He was sentenced to 60 months impris onment on Count IV, to run consecutively. Leopard’s convictions an d 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). O n October 24, 1995, the district court denied his motion in a min ute order. On March 25, 1996, Leopard wrote a letter to the cl erk of the district court inquiring about the status of his § 3582 motion. On April 6, 1996, he received a response indicating th at his motion had been denied by the Minute Order entered October24, 1995. On April 18, 1996, Leopard filed a Motion to File O ut of Time Appeal. In his motion, he stated that he never rec eived notice of the district court’s October 24, 1995, Minute Orderdenying his Motion to Modify Term of Imprisonment. On April 22 , 1996, the district court denied Leopard’s motion to file an a ppeal out of time. On May 2, 1996, Leopard timely initiated thi s appeal of the district court’s denial of his motion to file an ap peal out of time. On appeal, Leopard contends that the district court erred in1 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 me aning of this subdivision when it is entered on the criminal dock et.”). - 3 - denying his motion to file an out of time appeal wh en he never received a copy of the October 24, 1995, order. Insupport of his motion, Leopard attaches a copy of a May 7, 1996, f orm indicating when prison officials reviewed the Legal Log Book w here Leopard is incarcerated there were no entries of legal mail ad dressed to Leopard between October 25, 1995, and November 16, 1995. We review the district court’s denial of a motion f or leave to file an untimely notice of appeal on the grounds ofexcusable neglect under an abuse of discretion standard. Cha nute 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 acqu ires jurisdiction over an appeal only upon the timely fi ling of a notice of appeal and that this requirement is mandatory an d 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 o f appeal is set out in Federal Rule of Appellate Procedure 4 which states that “[i]n a criminal case, 1a defendant shall file the notice of appeal in the district court within 10 days after the entr y either of the judgment or order appealed from.” In addition, it provides that2 We need not decide if the doctrine of unique

circumstances would allow a late filed notice of ap peal because the doctrine only applies where an affirmative acti on by the court has misled the appellant which is not the cas e 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 circumst ances existed where appellants relied to their detriment on statements and actions of the district court and where it woul d work a great hardship on appellants to dismiss the appeal as unt imely). - 4 - “[u]pon a showing of excusable neglect, the distric t court may . . . extend the time for filing a notice of appeal fora period not to exceed 30 days from the expiration of the time othe rwise prescribed by this subdivision.” Fed. R. App. P. 4(b). Howev er, 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 n otice of appeal . . . except as specifically provided by law.”). S ee Certain Underwrites at Lloyds of London , 896 F.2d at 1255. 2 The district court’s order denying Leopard’s Motionto Modify Term of Imprisonment was entered on October 24, 199 5. Therefore, Leopard had 40 days or until December 3, 1995, incl uding all allowable extensions, to file his notice of appeal and/or any requests for an extension of time within which to f ile. However, Leopard did not file a motion for an extension of t ime until April 18, 1996; over five months past the final deadline. The district court did not have the power or author ity to grant Leopard’s motion to file an untimely notice o f appeal at such a late date. Accordingly, we hold that the distric t court did not- 5 -

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