United States v. Davey ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4377
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICCARDO MERCELLUS DAVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, District
Judge. (CR-02-201)
Submitted: July 8, 2003 Decided: July 18, 2003
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Derrick George Arjune, DERRICK ARJUNE & ASSOCIATES, P.C., Brooklyn,
New York, for Appellant. Christine Witcover Dean, Assistant United
States Attorney, Anne Margaret Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Riccardo Mercellus Davey seeks to appeal his conviction and
sentence. In criminal cases, the defendant must file his notice of
appeal within ten days of the entry of judgment. Fed. R. App. P.
4(b)(1)(A). With or without a motion, the district court may grant
an extension of time to file of up to thirty days upon a showing of
excusable neglect or good cause. Fed. R. App. P. 4(b)(4); United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).
The district court entered its judgment on March 24, 2002; the
ten-day appeal period expired on April 7, 2003. Davey filed his
notice of appeal on April 28, 2003, after the ten-day period
expired but within the thirty-day excusable neglect period. Because
the notice of appeal was filed within the excusable neglect period,
we deny the Government’s motion to dismiss without prejudice and
remand the case to the district court for the court to determine
whether Davey has shown excusable neglect or good cause warranting
an extension of the ten-day appeal period. The record, as
supplemented, will then be returned to this court for further
consideration. 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.
REMANDED
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