United States of America v. Lack, 487 U.S. 266 1988 , the notice of appeal is considered filed as of the date

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-7446
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELENA VON BRESSENSDORF, a/k/a Elena Bisheff,
a/k/a Baroness,
Defendant - Appellant.
No. 01-7576
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OTTO VON BRESSENSDORF,
Defendant - Appellant.

-- 1 of 4 --

2
No. 01-7577
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELENA VON BRESSENSDORF, a/k/a Elena Bisheff,
a/k/a Baroness,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CR-98-14)
Submitted: November 6, 2001 Decided: November 29, 2001
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Elena Von Bressensdorf, Otto Von Bressensdorf, Appellants Pro Se.
James Brien Comey, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia; Dana Johannes Finberg, MCCANDLISH, KAIN, P.C.,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

-- 2 of 4 --

1 Under Houston v. Lack, 487 U.S. 266 (1988), the notice of
appeal is considered filed as of the date Appellant delivered it to
prison officials for forwarding to the court. We presume for the
sake of this appeal, that the date on the notice of appeal is the
date the notice was given to prison officials for mailing.
3
PER CURIAM:
In these consolidated appeals, the Von Bressensdorfs challenge
the district court’s order granting the Trustee/Special Master’s
amended motion for approval of restitution payments and of fees and
costs. The order was entered on July 27, 2001. By notice of
appeal dated August 19, 2001, Elena Von Bressensdorf appealed this
order. Because No. 01-7446 is untimely, we dismiss. We further
grant the Government’s motion to dismiss Nos. 01-7576/7577. We
deny the Appellants’ motions to stay the court’s July 27, 2001,
order.
Criminal defendants have ten days from the entry of the
judgment or order at issue to file a notice of appeal. See Fed. R.
App. P. 4(b). The appeal periods established by Rule 4 are manda-
tory and jurisdictional. Browder v. Director, Dep’t of Correc-
tions, 434 U.S. 257, 264 (1978).
The district court’s order in No. 01-7446 was entered on the
docket on July 27, 2001. Elena Von Bressensdorf’s notice of appeal
was filed on August 19, 2001. 1 Because Von Bressensdorf failed to

-- 3 of 4 --

2 If the appeal was timely, we would dismiss on the Govern-
ment’s motion to dismiss the appeal because the appeal is clearly
frivolous. Elena Von Bressensdorf challenges an order granting the
Trustee/Special Master’s amended motion for approval of restitution
payments and of fees and costs. She argues that the order is pre-
mature because she will challenge her conviction in a 28 U.S.C.A.
§ 2255 (West Supp. 2001). She has yet to file such a motion.
Because restitution was affirmed on direct appeal, we find the
instant appeal is frivolous.
4
file a timely notice of appeal or obtain an extension or reopening
of the appeal period, we dismiss No. 01-7446. 2
Accordingly, we dismiss No. 01-7446 for lack of jurisdiction.
We grant the Government’s motion to dismiss insofar as it relates
to Nos. 01-7576 and 01-7577. We deny the Appellants’ motions for
a stay. We also deny Elena Von Bressensdorf’s motions for in forma
pauperis status filed in Nos. 01-7446 and 01-7577 and Otto Von
Bressensdorf’s motion for judicial notice filed in No. 01-7576. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED

-- 4 of 4 --