United States v. Asmar ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4832
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAID ASMAR,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:09-cr-00028-H-1)
Submitted: February 24, 2010 Decided: March 25, 2010
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC, Covington,
Kentucky, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Said Asmar pled guilty pursuant to a plea agreement to
illegal structuring of financial transactions, in violation of
31 U.S.C. § 5324(a)(3) and (d) (2006), and was sentenced to
sixty-three months in prison. The judgment was imposed on
August 11, 2009; however, Asmar did not file a notice of appeal
until September 3, 2009. After Asmar filed his appellate brief
with this court, the Government filed a motion to dismiss,
arguing Asmar had waived his right to appeal in the plea
agreement and also that the notice of appeal was not timely
filed. In his opposition to the motion, Asmar argues in
relevant part that although his notice of appeal was filed
outside the prescribed ten-day period, he had requested that the
district court grant him an extension to file his notice of
appeal. He asks this court to remand the case for the limited
purpose of permitting the district court to rule on his motion
for extension of time.
Under Fed. R. App. P. 4(b)(4), “the district court may
– before or after the time has expired, with or without motion
and notice – extend the time to file a notice of appeal for a
period not to exceed 30 days from the expiration of the time
otherwise prescribed” by Rule 4(b) for filing the notice. It is
clear from the record that Asmar filed his notice of appeal
within the applicable period under Rule 4(b)(4). The district
2
court has not addressed Asmar’s request or made a determination
as to whether he has shown excusable neglect or good cause
warranting an extension of time to file a notice of appeal.
Accordingly, we remand the case to the district court so it can
determine whether Asmar has made the requisite showing of
excusable neglect or good cause. Following this limited remand,
the record as supplemented will be returned to this court. We
defer ruling on the Government’s motion to dismiss pending the
limited remand.
REMANDED
3