United States v. Eve Ealy , 49 F. App'x 661 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2177
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Eve Monique Ealy * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 28, 2002
Filed: October 31, 2002
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Before LOKEN, BYE, and RILEY, Circuit Judges.
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PER CURIAM.
After entering a conditional guilty plea to possession with the intent to
distribute more than 500 grams of cocaine hydrochloride, in violation of 21 U.S.C.
§ 841(a)(1), Eve Monique Ealy appeals the denial of her suppression motion. Ealy’s
notice of appeal was untimely filed twenty-seven days after judgment was entered in
the district court. See Fed. R. App. P. 4(b)(1)(A)(i). This appellate defect is
jurisdictional, but Rule 4(b)(4) of the Federal Rules of Appellate Procedure
authorizes the district court, “before or after the time has expired, with or without
motion and notice,” to extend the appeal period for up to thirty days “[u]pon a finding
of excusable neglect or good cause.” Because Ealy’s notice of appeal was untimely
by less than thirty days, we remand the case to the district court for a determination
of whether the time for filing a notice of appeal should be extended under Rule
4(b)(4). See United States v. Austin, 217 F.3d 595, 597 (8th Cir. 2000); United States
v. Petty, 82 F.3d 809, 810 (8th Cir. 1996).
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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