United States v. Demonbreun ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50028
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL DEMONBREUN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-97-CR-23-7
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June 17, 1998
Before DAVIS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
This court must examine the basis of its jurisdiction on its
own motion if necessary. United States v. Lister, 53 F.3d 66, 68
(5th Cir. 1995). Fed. R. Crim. P. 4(b) requires that a notice of
appeal by a defendant in a criminal case be filed within ten days
of entry of judgment. The rule allows the district court to
grant an additional 30 days in which to file the notice of appeal
upon a showing of excusable neglect. This court customarily
*
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that this opinion should not be published and is not precedent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.
No. 98-50028
- 2 -
treats the filing of an untimely notice of appeal within the 30-
day period as a motion for a determination whether excusable
neglect entitles the defendant to an extension of time to appeal.
See United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).
The district court’s judgment from which Demonbreun has
appealed was entered on December 11, 1997, and defendant, through
counsel, filed his notice of appeal on December 23, 1997, one day
late but within the 30-day period. See Fed. R. App. P. 4(b) &
26(a). We therefore remand the case to the district court for a
determination whether defendant’s untimely filing of the notice
of appeal was due to excusable neglect. Upon making the
determination, the district court shall return the case to this
court for further proceedings or dismissal, as may be
appropriate.
REMANDED.