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UNITED STATES v. RAMOS

November 5, 1992

UNITED STATES OF AMERICA
v.
EDWARD L. RAMOS



The opinion of the court was delivered by: STANLEY S. HARRIS

MEMORANDUM ORDER

 Before the Court is defendant's Motion To Vacate Sentence So That Defendant May File His Notice of Appeal and the government's opposition thereto. Although this Court believes that such a practice is an unwise circumvention of the time limits for appeal established in the federal rules, it believes that it is bound by the applicable case law to grant the motion.

 Background

 Defendant Ramos was arrested with his codefendant Johnny Dockery on August 31, 1989. A seven-count indictment was returned charging both defendants on September 28, 1989. Defendant Ramos's present counsel, Douglas J. Wood, entered his appearance on behalf of Ramos on October 17, 1989. He then identified himself as being a part of Roberts, Wood & Grimm, whose "Grimm" -- presumably Bernard S. Grimm -- ultimately became counsel for Ramos during the trial.

 On April 9, 1990, the jury found defendant Ramos guilty on all of the counts of the indictment which charged him with drug offenses (Counts 1, 2, 4, and 5); it found him not guilty on Count 6, which charged him with using or carrying a firearm during and in relation to a drug trafficking offense. *fn1"

 On July 11, 1990, defendant Ramos was sentenced in part to 70 months on each count, to be served concurrently. (The Court notes that defendant's guideline sentencing range was 70 to 87 months, meaning that he was sentenced at the bottom of the guidelines.) At the conclusion of the sentencing, the Court advised defendant of his right to appeal. (For the record, attached as Appendix 1 is a copy of the final page of the sentencing transcript.) It now is apparent that no notice of appeal was filed. Seventeen months after the sentencing, Mr. Wood -- once again participating in the case -- has filed a motion pursuant to 28 U.S.C. § 2255 asking the Court to resentence defendant Ramos so that he may file an appeal.

 Discussion

 Rule 4(b) of Federal Rules of Appellate Procedure

 Under Rule 4(b) of the Federal Rules of Appellate Procedure, a notice of appeal by a criminal defendant must be filed within ten days after the entry of judgment. See Fed. R. App. P. 4(b). However, the Rule also provides that:

 Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

 Id.

 It is clear that defendant Ramos has not met the time requirements under either of the routes provided by Rule 4(b).

 In United States v. Robinson, the Supreme Court held that the time restrictions on filing an appeal were jurisdictional. See United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 288, 4 L. Ed. 2d 259 (1960). In considering a previous version of the federal rules, the Supreme Court held that courts did not have the authority under the rules to extend the time for filing an appeal. The Court noted that:

 Rule 45(b) says in plain words that ". . . the court may not enlarge . . . the period for taking an appeal." The courts have uniformly held that the taking of an appeal within the ...


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