* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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 

### DEC 8 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. PIYARATH S. KAYARATH, a/k/a Be, a/k/a Be Nouanley, Defendant-Appellant. Nos. 96-3019 & 96-3277 (D.C. No. 94-10123-2) (D. Kan.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Kayarath directly appeals two orders of the Uni ted States District Court of the District of Kansas. We exercise jurisdictio n under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). These appeals are consolidated u nder Fed. R. App. P. 3(b). We remand No. 96-3019 to the district court for a d etermination of excusable neglect, and we dismiss No. 96-3277.
Mr. Kayarath pleaded guilty to multiple robbery and weapons possession charges under 18 U.S.C. § 1951 and § 924(c). On De cember 20, 1995, he was sentenced to a term of 330 months. Also on that date, the United States filed a motion pursuant to the U.S. Sentencing Guidelines M anual § 5K1.1 and 18 U.S.C. § 3553(e) to reduce Mr. Kayarath's sentence to a pe riod of 288 months for substantial assistance. At sentencing, the distric t court took the § 5K1.1 motion under advisement until the outcome of another case involving Mr. Kayarath. The district court entered judgment in Mr. Kayarath's c ase on December 27, 1995.
On January 9, 1996, Mr. Kayarath's attorney filed an untimely notice of appeal (No. 96-3019) from the district court's judg ment. Mr. Kayarath's attorney states he miscalculated the filing deadline by usin g the Fed. R. Crim. P. 45 time computation rather than the correct time computatio n found in Fed. R. App. P. 26.1 The district court found although the Tenth Circu it has not ruled on the

issue before, other circuits have held it is improp er to take a § 5K1.1 motion under advisement (citing United States v. Mittelstadt , 969 F.2d 335 (7th Cir. 1992); United States v. Howard, 902 F.2d 894, 896-97 (11th Cir. 1990)). -3- On April 3, 1996, this court partially remanded No. 96-3019 to the district court to allow Mr. Kayarath to file a motion for an extension of time to file a notice of appeal, and allow the district court to d etermine if Mr. Kayarath made a showing of excusable neglect necessary for this cou rt to conclude whether it has jurisdiction. Mr. Kayarath filed a motion for an e xtension of time in which to file a notice of appeal with the district court.
On May 16, 1996, the district court failed to rule on the motion but entered an order noting the § 5K1.1 motion was still pendin g and suggested this court dismiss No. 96-3019 and remand for a ruling on the § 5K1.1 motion. The district court stated in its order it erred in not ruling on the § 5K1.1 motion prior to sentencing. 1
On July 23, 1996, this court again partially remand ed No. 96-3019 to the district court to rule on the § 5K1.1 motion and Mr . Kayarath's the motion for an extension of time. The district court ruled on the § 5K1.1 motion reducing Mr. Kayarath's sentence to 240 months imprisonment in an amended judgment entered-4-

on August 20, 1996. The court did not rule on the motion for an extension of time. Mr. Kayarath subsequently filed a timely app eal, No. 96-3277, from his amended sentence. In an order on filed October 10, 1996, this court consolidated Nos. 96-3019 and 96-3277 for the purposes of briefi ng and submission.
The following three issues are raised on appeal: ( 1) does this court have jurisdiction over No. 96-3019 without the district court's determination of excusable neglect; (2) was Mr. Kayarath's counsel i neffective in securing the least possible sentence; and (3) does Mr. Kayarath provid e grounds for us to review his sentence (No. 96-3277).

No. 96-3019 Pursuant to Fed. R. App. P. 4(b), a defendant must file a notice of appeal within ten days from the entry of his judgment on the criminal docket. However, with or without a motion and upon a showing of excu sable neglect, the district court may grant an extension of time to file a noti ce of appeal not to exceed thirty days from the expiration of the ten day period othe rwise allowed under Rule 4(b). A timely notice of appeal is "'mandatory and jurisd ictional.'" United States v. Davis , 929 F.2d 554, 557 (10th Cir. 1991) (quoting United States v. Robinson ,2Orders filed April 3, 1996 and July 23, 1996. -5- 361 U.S. 220, 224 (1960)). We are therefore without jurisdiction if Mr. Kayarath's notice of appeal is not timely filed.
Mr. Kayarath filed his notice of appeal for No. 96- 3019 on January 9, 1996. His judgment was entered on the criminal docket on December 27, 1995. Therefore, Mr. Kayarath filed his notice of appeal thirteen days after his criminal judgment was entered. Consequently, his notice of appeal was filed beyond the ten day limit set forth under Rule 4(b) but within the thirty-day permissible extension period allowed if the district court find s the delay was caused by excusable neglect. See Fed. R. App. P. 4(b).
A defendant who has filed a notice of appeal within the thirty-day permissible extension period, should have the opportunity to seek relief by a showing of excusable neglect. See United States v. Lucas , 597 F.2d 243, 245 (10th Cir. 1979). In two orders 2 this court partially remanded No. 96-3019 to the district court to determine if Mr. Kayarath has sho wn excusable neglect to extend the time to file a notice of appeal. The district court failed to make its determination as requested in both orders. This co urt is without jurisdiction over this appeal until the district court determines if Mr. Kayarath has made a-6-

sufficient showing of excusable neglect necessary t o establish Mr. Kayarath's notice of appeal was timely filed.
Mr. Kayarath requests this court to rule his attorn ey's misreading of the Federal Rules of Appellate Procedure constituted ex cusable neglect as a matter of law. However, because a finding of excusable negle ct is dependent on the facts of each case, without a hearing allowing full prese ntation of the facts we are unwilling to conclude an attorney's mistake constitutes excusable neglect as a matter of law. See, e.g., Pioneer Inv. Servs. Co. v. Brunswick Ass ocs. Ltd. Partnership , 507 U.S. 380, 394 (1993); City of Chanute v. Williams Natural Gas Co. , 31 F.3d 1041, 1046 (10th Cir. 1994), cert. denied, 513 U.S. 1191 (1995); Buckley v. United States, 382 F.2d 611, 615 (10th Cir. 1967), cert. denied, 390 U.S. 997 (1968).
Mr. Kayarath also contends the jurisdictional issue in No. 96-3019 is moot because his original judgment was not a final orderand his second timely appeal of his revised sentence, No. 96-3277, would include any issues raised in the first appeal. We disagree. First, Mr. Kayarath's first criminal judgment was a final appealable order. See United States v. Mendes , 912 F.2d 434, 437 (10th Cir. 1990) (holding an erroneous or illegal sentence is a final judgment for purposes-7-

of appeal). Second, any issues intended to be rais ed in this first appeal, which never reached the merits, must be raised in his dir ect appeal of the judgment or be waived. Id. (holding the grant on remand does not reopen the o rder appealed from and the first order cannot be challenged in an appeal of a second final order). In addition, our jurisdiction over No. 96- 3277 is limited to the scope of our remand, to rule on the § 5K1.1 motion. See United States v. Webb , 98 F.3d 585, 589 (10th Cir. 1996), cert. denied, 117 S. Ct. 1097 (1997). Consequently, the jurisdictional issue of Mr. Kayarath's first ap peal is not moot.

No. 96-3277 Mr. Kayarath contends his sentence is too long and his counsel was ineffective in securing the least possible sentence . We dismiss Mr. Kayarath's ineffective assistance of counsel claim because it is not reviewable on direct appeal. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). Such claim should be brought in a collateral procee ding. See id.
With respect to Mr. Kayarath's claim his sentence i s too long, he may appeal his sentence if he alleges the sentence was imposed in violation of the law or as a result of an incorrect application of the U .S. Sentencing Guidelines. See 18 U.S.C. § 3742(a). Mr. Kayarath claims neither. Mr. Kayarath was originally3 Mr. Kayarath's counsel filed an Anders brief requesting permission to

withdraw because Mr. Kayarath's claim his sentence was too long was wholly frivolous. Following Anders v. California , 386 U.S. 738, 744 (1967), Mr. Kayarath's counsel requests permission to withdraw from this case. We grant the permission to withdraw. -8- sentenced to a total of 330 months, within the sent encing range imposed under the Guidelines. After remand, the district court grant ed the § 5K1.1 motion and reduced his sentence to an aggregate 240 month sent ence, below the sentence the United States had recommended in its motion. When a district court grants a motion under § 5K1.1 and departs downward, the degr ee of departure may not be reviewed by this court absent an incorrect applicat ion of the sentencing guidelines. See United States v. Bromberg , 933 F.2d 895, 896 (10th Cir. 1991). Therefore, Mr. Kayarath's appeal should be dismisse d since we have no jurisdiction to entertain it. 3
Accordingly, we REMAND No. 96-3019 to the district court to rule on Mr. Kayarath's motion to extend the time to file a noti ce of appeal, and DISMISS No. 96-3277.

Entered for the Court WADE BRORBY United States Circuit Judge