United States v. Mosley , 80 F. App'x 865 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4170
JOSEPH IZELL MOSLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CR-02-376)
Submitted: October 29, 2003
Decided: November 17, 2003
Before MICHAEL and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Remanded by unpublished per curiam opinion.
COUNSEL
Christopher J. Moran, LAW OFFICES OF CHRISTOPHER J.
MORAN, Columbia, South Carolina, for Appellant. Isaac Louis John-
son, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Green-
ville, South Carolina, for Appellee.
2 UNITED STATES v. MOSLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joseph Izell Mosley appeals his conviction and sentence for viola-
tions of 18 U.S.C. § 2113(a), (d) (2000) and 18 U.S.C. § 924(c)(1)(A)
(2000). We remand this case to the district court for a determination
of excusable neglect.
Federal Rule of Appellate Procedure 3 conditions federal appellate
jurisdiction on the filing of a timely notice of appeal. Fed. R. App. P.
4(b)(1)(A) states that a defendant in a criminal case must file an
appeal within ten days of the entry of judgment or the notice of appeal
by the government. It is well-settled that compliance with Fed. R.
App. P. 4(b) is mandatory and jurisdictional. Smith v. Barry, 502 U.S.
244, 248 (1992); United States v. Schuchardt, 685 F.2d 901, 902 (4th
Cir. 1982). In a criminal case, when a notice of appeal is filed within
thirty days after the expiration of the ten-day appeal period, the dis-
trict court may grant an extension upon a showing of excusable
neglect. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351,
351 (4th Cir. 1985). In such cases, we generally remand to the district
court for the limited determination of whether there has been good
cause or excusable neglect to excuse the late filing. Reyes, 759 F.2d
at 353-54.
The district court’s judgment of conviction was entered on Decem-
ber 18, 2002. The ten-day appeal period expired on January 3, 2003.
Mosley filed the notice of appeal on January 30, 2003, within thirty
days after the expiration of the ten-day appeal period. Accordingly,
we remand the case to the district court for a limited excusable
neglect determination. 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