*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

September 14, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-3289

v. (Case No. 97-CR-10068-MLB)

MAKONNEN MILES, (D. Kan.)

Defendant-Appellant.

 

ORDER AND JUDGMENT*

Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.

The defendant, Makonnen Miles, brings this pro se appeal challenging the

district court’s denial of the sentence-reduction motion he raised pursuant to 18

U.S.C. § 3582(c)(2). The court denied the motion on the grounds that it lacked

jurisdiction to provide relief under Amendment 706 to the United States

Sentencing Guidelines. Specifically, the court concluded that because Defendant

was sentenced pursuant to a statutory mandatory minimum sentence, Amendment

706 provided no grounds to lower his sentence under § 3582(c)(2). 
-2-

As a threshold matter, we must determine whether we have jurisdiction to

hear this appeal. “A timely notice of appeal is both mandatory and

jurisdictional.” United States v. Langham, 77 F.3d 1280, 1280 (10th Cir. 1996). 

“In a criminal case, a defendant’s notice of appeal must be filed in the district

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

appealed.” Fed. R. App. P. 4(b)(1). The inmate bears the burden of proving the

filing was timely made. Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005). 

When a party is incarcerated, as is Defendant, a filing is considered timely

“if it is deposited in the institution’s internal mail system on or before the last day

for filing. If an institution has a system designed for legal mail, the inmate must

use that system to receive the benefit of this rule.” Fed. R. App. P. 4(c)(1). 

Where a prison has no system designed for legal mail, to take advantage of the

prison mailbox rule, the inmate must submit either a “declaration in compliance

with 28 U.S.C. § 1746” or a “notarized statement.” Id. To be effective, the

declaration or statement must “set forth the date of deposit and state that firstclass postage has been prepaid.” Id.; see also Price, 420 F.3d at 1166; United

States v. Smith, 182 F.3d 733, 734 n.1 (10th Cir. 1999). 

Defendant’s notice of appeal was filed on October 20, 2008, three days past

the filing deadline of October 17, 2008. Defendant asserts that he timely filed his

notice of appeal, but that he dropped it in the wrong mailbox. However, the

government argues the filing was untimely because Defendant is not entitled to
-3-

the protections of the prison mailbox rule. Specifically, the government contends

Defendant’s certificate of service fails to comply with the requirements of Federal

Rule of Appellate Procedure 4(c) in that Defendant failed to declare under penalty

of perjury the date on which he gave the documents to prison authorities. 

At the outset, Defendant has failed to establish that a system designed for

legal mail was unavailable for him to use. Further, even assuming Defendant

lacked access to a satisfactory legal mail system, Defendant’s certificate of

service fails in numerous ways to meet the requirements of the statute with

respect to regular mail. Because Defendant submitted no notarized statement, his

declaration must comply with § 1746 to be valid. But to be in compliance with §

1746, the inmate must “subscribe” his declaration “as true under penalty of

perjury.” 28 U.S.C. § 1746. Defendant claimed the statement was true to the best

of his information, but failed to attest to it under the penalty of perjury. Because

the emphasized language is specifically required by § 1746, we have previously

found declarations omitting this language to be insufficient. See Price, 420 F.3d

at 1167. Indeed, we have consistently focused on the importance of this

language. See id. at 1165 n.6.

In addition, Defendant made an even more significant omission: under

Rule 4(c), the declaration must include the date of the document’s deposit with

prison authorities. While Defendant’s certificate notes that it was “executed” on

October 9, 2008, it does not specify when it was deposited with prison authorities. 
1

 Because we lack jurisdiction over this appeal, we need not address the

merits. We note, however, that we have held that defendants cannot take

advantage of sentence reductions under § 3582(c)(2) where they were sentenced

pursuant to statutory mandatory minimum sentences. See, e.g., United States v.

Smartt, 129 F.3d 539, 540 (10th Cir. 1997); United States v. Lacy, 2009 WL

1491482, at *1 (10th Cir. May 28, 2009); United States v. Dennis, 2009 WL

1416724, at *4 (10th Cir. May 21, 2009).

-4-

This is a major distinction, especially where Defendant dated the first page of his

notice of appeal October 12, 2009—three days after the certificate of service was

executed. We cannot even begin to assess the applicability of the prison mailbox

rule, let alone give Defendant the benefit of its protections, where we have no

way to determine the date on which the documents were deposited with prison

authorities. 

Finally, as we observed in United States v. Ceballos-Martinez, 387 F.3d

1140, 1145 (10th Cir. 2004), the general rule that we liberally construe the

pleadings of pro se litigants does not relieve such litigants of the burden of

following congressionally established procedural rules. This is especially true

with respect to rules Congress adopted to apply exclusively to pro se litigants,

such as Rule 4(c)(1). Id. at 1146. In this case, Defendant simply has not shown

his compliance with Rule 4(c). 

 For the foregoing reasons, Defendant’s notice of appeal does not qualify as

timely under the prison mailbox rule, and we lack jurisdiction over his appeal.1

 
-5-

Therefore, this appeal is DISMISSED. All other pending motions are DENIED.

Entered for the Court

Monroe G. McKay

Circuit Judge