United States v. Roderick Piggee

968 F.2d 22 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. UNITED STATES of America, Plaintiff-Appellee, v. Roderick PIGGEE, Defendant-Appellant. No. 91-6179. United States Court of Appeals, Tenth Circuit. May 29, 1992. Before SEYMOUR, JOHN P. MOORE and SNEED,** Circuit Judges. ORDER AND JUDGMENT* SEYMOUR, Circuit Judge. [1] Judgment was entered by the district court in this action on March 14, 1991. Defendant did not file a notice of appeal. Rather, on March 25 the court received a letter from defendant's mother stating that her son wished to file a notice of appeal, had just become aware that his attorney had failed to do so, and wanted an extension of time so that he could obtain the necessary papers to file the notice. The court clerk docketed the letter as a motion for extension of time to file a notice of appeal. That motion was never acted on by the district court. [2] On April 22, 1991, the district court amended the judgment to correct a clerical error. Although defendant was convicted of violating 21 U.S.C. § 846, the original judgment stated he had been convicted under 21 U.S.C. § 841(a)(1). Defendant filed a notice of appeal on April 26, within ten days of the amended judgment. However, the correction of a clerical error in a judgment does not start anew the time for filing a notice of appeal. Cf. White v. Westrick, 921 F.2d 784 (8th Cir.1990). [3] Accordingly, we lack jurisdiction over this appeal unless and until the district court decides the pending motion for extension of time and determines that there is excusable neglect for defendant's failure to timely file a notice of appeal. [4] APPEAL DISMISSED. Footnotes [-s] * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3 [-s-s] ** The Honorable Joseph T. Sneed, United States Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation