United States v. Pipkin , 257 F. App'x 615 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4617
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD TYRONE PIPKIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-001129-TLW)
Submitted: November 14, 2007 Decided: December 13, 2007
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Ronald R. Hall, West Columbia, South Carolina, for Appellant. Rose
Mary Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Tyrone Pipkin seeks to appeal his conviction and
sentence. Pipkin has filed two motions in this court for an
extension of the appeal period. The Government has moved to
dismiss the appeal as untimely.
In criminal cases, the defendant must file a notice of
appeal within ten days after the entry of judgment. Fed. R. App.
P. 4(b)(1)(A). With or without a motion, upon a showing of
excusable neglect or good cause, the district court may grant an
extension of up to thirty days to file a notice of appeal. Fed. R.
App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th
Cir. 1985).
The district court’s judgment was entered on the docket
on March 23, 2007.* Pipkin filed a letter in the district court
indicating his intent to appeal dated May 3, 2007, after the ten-
day period expired but within the thirty-day excusable neglect
period. The letter, however, was not postmarked until May 8, 2007,
after the thirty-day excusable neglect period expired. We construe
Pipkin’s letter as a notice of appeal. See Smith v. Barry, 502
U.S. 244, 248 (1992). Because the notice of appeal may have been
filed within the excusable neglect period, we remand the case to
*
Pipkin erroneously states that the judgment was entered on
March 8, 2007, the date of his sentencing hearing. The Government
erroneously states that the judgment was entered on March 22, 2007,
the date on which the judgment was signed.
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the district court for the court to determine whether the notice
should be deemed to have been filed within the excusable neglect
period, which expired on May 7, 2007. Fed. R. App. P. 4 (b),
(c)(1). Houston v. Lack, 487 U.S. 266 (1988). If the district
court determines that Pipkin’s notice was filed within the
excusable neglect period, the court shall determine whether Pipkin
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.
Pipkin’s motions in this court for an extension of the appeal
period are denied, as only the district court has jurisdiction to
extend the appeal period. We defer action on the government’s
motion to dismiss the appeal for lack of jurisdiction. 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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