United States v. Hollins ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-21040
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD TYRONE HOLLINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-3083
USDC No. H-00-CR-242-1
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February 19, 2003
Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Reginald Tyrone Hollins, # 88295-079, requests a certificate
of appealability (“COA”) to appeal the district court’s denial of
his 28 U.S.C. § 2255 motion. Hollins was convicted on his guilty
pleas to charges of being a felon in possession of a firearm and
carjacking and was sentenced to concurrent terms of 188 months’
imprisonment and three years’ supervised release.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
We examine the basis of our jurisdiction on our own motion.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). The time limit
for a notice of appeal is a mandatory precondition to the exercise
of appellate jurisdiction, and the lack of a timely notice mandates
dismissal of the appeal. United States v. Garcia-Machado, 845 F.2d
492, 493 (5th Cir. 1988). Hollins had sixty days from the June 18,
2002, entry of the district court’s order, that is, until Monday,
August 19, 2002, to file a timely notice of appeal. FED. R. APP. P.
4(a)(1)(B); United States v. De Los Reyes, 842 F.2d 755, 757 (5th
Cir. 1988). Hollins’ notice of appeal, dated September 5, 2002,
was untimely.
Rule 4(a)(5), FED. R. APP. P., allows the district court to
grant an additional thirty days in which to file a notice of appeal
upon a showing of excusable neglect or good cause. Hollins’ notice
of appeal, which was filed within this 30-day period sufficed as a
motion for a finding on excusable neglect or good cause. United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000); United States
v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).
Accordingly, the COA motion is held in abeyance and the case
is REMANDED to the district court for a finding under FED. R. APP. P.
4(a)(5). Golding, 739 F.2d at 184. Upon making the finding, the
district court shall promptly return the case to this court for
dismissal or further proceedings, as may be appropriate.
REMANDED.
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