* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### May 4, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-6326

v. (W.D. Oklahoma) RAFAEL ANTONIO HERRERA,

Defendant - Appellant. (D.C. No. 92-CR-209-T)

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Rafael Antonio Herrera appeals the district court’s denial of his motion pursuant to 18 U.S.C. § 3582. We dismiss his appea l for lack of jurisdiction.

BACKGROUND Herrera pled guilty in 1992 to one count of conspir acy to possess with intent to distribute and to distribute cocaine powd er and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. His subsequent motion to withdraw his guilty plea was denied, and he was sentenced to a lifetime term of imprisonment, followed by five years of supervised release, and a ssessed a $50 special assessment. His conviction and sentence were affirmed on direct appeal. United States v. Herrera , No. 93-6100, 1994 WL 36766 (10th Cir. Feb. 8, 199 4) (unpublished). He later filed a motion under 28 U. S.C. § 2255, which the district court rejected. On appeal, this court affirmed. United States v. Herrera , No. 97- 6235, 1998 WL 321217 (10th Cir. Jun. 5, 1998) (unpu blished). In 2000 and in 2003, Herrera filed motions for leave to file a sec ond or successive § 2255 motion, raising arguments related to the Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466 (2000). This court denied both moti ons. In June 2005, Herrera filed a “Motion to Modify a[n ] Illegal Sentence Under 18 U.S.C. § 3582(b)(2)(B),” again raising arguments related to Apprendi and also invoking the Supreme Court’s recent decision in United States v. Booker ,-3-

543 U.S. 220 (2005). The district court denied thi s motion on September 19, 2005. Herrera filed a notice of appeal, which was docketed on October 4, 2005, one day beyond the time limit set forth in Fed. R. App. P. 4(b)(1)(A). Attached to the notice was a certificate of service indicating that Herrera had placed the notice in the “prison[] mail box marked ‘legal mail ’ for prisoners” on September 22, 2005. The certificate did not state that first-class postage has been prepaid. This court issued a jurisdictional show cause orderasking Herrera to show cause why his appeal should not be dismissed based on the untimeliness of his notice of appeal. In response, Herrera argued thatthe prison mailbox rule recognized in Houston v. Lack , 487 U.S. 266, 276 (1988), and set forth in Fed. R

. App. P. 4(c)(1), applied and that because his notic e of appeal had been put into the prison mailbox well within the time limit, it w as not untimely. He further indicated that the reason the prison mail system di d not deliver his notice of appeal to the court within the time limit was that the prison had been on lockdown due to Hurricane Rita. He attached to his submissi on a memorandum from a Correctional Counselor at his prison verifying that , “due to the devastation of the Hurricane in th[e] area, no mail was processed [in the prison] from September 23, 2005, through October 1, 2005.” The jurisdictional issue was referred to the merits panel, and the parties submitted briefs on t he merits.-4- DISCUSSION As an initial matter, we must address the jurisdict ional issue. “The filing of a timely notice of appeal is an absolute prerequ isite to our jurisdiction,” and the appellant bears the burden of establishing jurisdiction. United States v. Ceballos-Martinez , 387 F.3d 1140, 1143 (10th Cir. 2004) (internal qu otation omitted). A pro se prisoner may establish timeline ss of a notice of appeal based on the prison mailbox rule set forth in Rule 4(c)(1 ), which states:

If an inmate confined in an institution files a not ice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail systemon or before the last day for filing. If an institution has a syste m designed for legal mail, the inmate must use that system to receive th e benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that f irst-class postage has been prepaid. Fed. R. App. P. 4(c)(1). We have held that, where a prison does not have a “system designed for legal mail,” a pro se prisonerseeking to take advantage of the prison mailbox rule must submit either a “decla ration in compliance with 28 U.S.C. § 1746” or a “notarized statement,” and thatthe declaration or statement must “state that first-class postage has been prepaid” in order to be effective. See Ceballos-Martinez , 387 F.3d at 1145; see also United States v. Smith , 182 F.3d 733, 735 n.1 (10th Cir. 1999).1 Because we lack subject matter jurisdiction over th is appeal, we need not

address the merits of Herrera’s appeal. We note th at this court has recently held that Bookerdoes not provide a ground for reducing a sentence pursuant to § 3582(c)(2). See United States v. Price , 438 F.3d 1005, 1007 (10th Cir. 2006). -5- Here, as indicated above, Herrera submitted a certi ficate of service indicating that he placed his notice of appeal “in the prison[] mail box marked ‘legal mail’ for prisoners.” However, he has not s ubmitted a copy of any record that his prison might have kept of the date he plac ed his notice in the mailbox, nor does the memo from a Correctional Counselor at his prison indicate that date. It therefore does not appear that his prison has a leg al mail system within the meaning of Rule 4(c)(1). See United States v. Gray , 182 F.3d 762, 765 (10th Cir. 1999) (recognizing “the understanding that legal ma il systems automatically log in all legal mail through relatively simple, straightforw ard procedures”). Yet, as also indicated above, Herrera’s certificate of serv ice fails to state that first-class postage has been prepaid. While Herrera argues that he mailed his notice of appeal “in plenty of time for the court to get it” and had no reason to suspect that a hurricane would cause a delay, we note that Herre ra failed to submit a declaration complying with the requirements of Rule 4(c)(1) when responding to our order to show cause. We therefore conclude that Herrera’s notice of appeal does not qualify for the prison mailbox rule, and that we therefore lack jurisdiction over his appeal. 1-6- CONCLUSION For the foregoing reasons, this appeal is DISMISSED

. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge