United States v. Robinson ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4388
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARREN OLIVER ROBINSON, a/k/a Stretch, a/k/a
Desaun Talib Bethel,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-04-52)
Submitted: July 13, 2005 Decided: July 28, 2005
Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Jacqueline Ann Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston,
West Virginia, for Appellant. Thomas Edward Johnston, United
States Attorney, Wheeling, West Virginia, Thomas Oliver Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darren Oliver Robinson seeks to appeal his conviction for
possession with intent to distribute cocaine base and his 202-
month sentence of imprisonment. In criminal cases, the defendant
must file an appeal within ten days of the entry of judgment or the
notice of appeal by the government. Fed. R. App. P. 4(b)(1)(A).
When a notice of appeal is filed within thirty days of the
expiration of the appeal period, the district court may grant an
extension, with or without a motion, upon a showing of excusable
neglect or good cause. Fed. R. App. P. 4(b)(4); United States v.
Reyes, 759 F.2d 351, 352-53 (4th Cir. 1985).
The district court entered its judgment on February 16,
2005. Under Rule 4(b)(1)(A), Robinson had ten days, or until
March 3, 2005, to file a notice of appeal.1 Under Houston v. Lack,
487 U.S. 266 (1988), the notice of appeal was filed on April 4,
2005, which was after the ten-day period expired but within the
thirty-day excusable neglect period.2 Because the notice of appeal
was filed within the excusable neglect period, we remand the case
1
See Fed. R. App. P. 26(a)(2) (providing that intermediate
Saturdays, Sundays, and legal holidays are excluded when period is
less than eleven days).
2
The notice of appeal was date stamped and entered by the
district court on April 6, 2005, but the notice also contained a
second date stamp reflecting a date of April 4, 2005, thereby
suggesting Robinson had delivered it to prison officials for
mailing prior to the expiration of the thirty-day excusable neglect
period.
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to the district court for the court to determine whether Robinson
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 also
defer ruling on the United States’ motion to dismiss the appeal
pending the district court’s 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
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