United States v. John Clayton Harris

76 F.3d 389 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. John Clayton HARRIS, Defendant-Appellant. No. 95-10310. United States Court of Appeals, Ninth Circuit. Submitted Jan. 23, 1996.* Decided Jan. 25, 1996. Before: ALARCON, HALL and BRUNETTI, Circuit Judges. [1] MEMORANDUM** [2] John C. Harris, who was convicted of bank robbery in violation of 18 U.S.C. § 2113(a), appeals the district court's denial of his motion to file a late notice of appeal. We affirm. [3] Compliance with the filing deadlines set forth in Fed.R.App.P. 4(b) is "both mandatory and jurisdictional." See United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir.1986) (citations omitted). Harris neither filed his notice of appeal within the ten-day filing period, nor did he timely seek an extension of time due to excusable neglect. While we recognize an exception to Rule 4(b) where an appellant has done all he could under the circumstances to perfect an appeal, an attorney's failure to file a notice of appeal after informing the defendant that it would be filed does not satisfy that exception. See id., citing United States v. Smith, 425 F.2d 173, 174 (9th Cir.1970). [4] AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3