United States v. Darling

15-3877-cr (L)
United States v. Darling
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is gov-
erned by Federal Rule of Appellate Procedure 32.1 and this Court’s Local
Rule 32.1.1. When citing a summary order in a document filed with this
Court, a party must cite either the Federal Appendix or an electronic da-
tabase (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 13th day of June, two thousand and seventeen.
Present:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges,
NICHOLAS G. GARAUFIS,
District Judge.*
UNITED STATES OF AMERICA,
Appellee,
v. 15-3877-cr
15-4178-cr
JOSEPH LEE DARLING,
Defendant-Appellant.
For Appellant: BARCLAY T. JOHNSON, Research & Writing Attorney,
(Elizabeth K. Quinn, Assistant Federal Public Defender;
*Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New
York, sitting by designation.
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United States v. Darling
Michael L. Desautels, Federal Public Defender, on the
brief), Burlington, Vermont.
For Appellee: PAUL J. VAN DE GRAAF, Chief Assistant United States At-
torney, Criminal Division, (Gregory L. Waples, Wendy L.
Fuller, Assistant United States Attorneys, on the brief) for
Eugenia A.P. Cowles, Acting United States Attorney for
the District of Vermont, Burlington, Vermont.
Appeal from orders of the United States District Court for the District of
Vermont (Reiss, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, AD-
JUDGED, AND DECREED that the orders of the district court are AFFIRMED
in part, and the appeal is DISMISSED in part.
Pursuant to a Rule 11(c)(1)(C) plea agreement, Defendant-Appellant Joseph
Lee Darling was sentenced to thirteen months in prison on a supervised release vio-
lation running consecutive to a 120-month sentence for oxycodone distribution. Af-
ter his appeal period had run, Darling moved for leave to file a late appeal. The dis-
trict court denied that motion and Darling’s subsequent motion for reconsideration.
Darling ultimately filed two notices of appeal: one from the denial of his motion for
leave to file a late appeal and another untimely appeal from his sentence. We as-
sume the parties’ familiarity with the underlying facts, the procedural history, the
district court’s rulings, and the arguments presented on appeal.
We review orders denying leave to file a late notice of appeal for abuse of dis-
cretion. United States v. Walls, 163 F.3d 146, 147 (2d Cir. 1998). “Such an order
cannot be set aside by a reviewing court unless it has a definite and firm conviction
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that the court below committed a clear error of judgment in the conclusion that it
reached upon a weighing of the relevant factors.” Silivanch v. Celebrity Cruises,
Inc., 333 F.3d 355, 362 (2d Cir. 2003) (internal quotation marks omitted). We cannot
say that the district court exceeded the bounds of its discretion here.
Federal Rule of Appellate Procedure 4(b)(4) permits district courts to grant
leave to file late appeals “[u]pon a finding of excusable neglect or good cause.” Be-
cause Darling’s failure to file his notice of appeal was not due to circumstances be-
yond his control, we conclude that the “good cause” standard does not apply. See
Fed. R. App. P. 4(a)(5)(A)(ii) advisory committee’s notes to 2002 amendments (“The
good cause standard applies in situations in which there is no fault—excusable or
otherwise. In such situations, the need for an extension is usually occasioned by
something that is not within the control of the movant. . . . If, for example, the Post-
al Service fails to deliver a notice of appeal, a movant might have good cause to seek
a post-expiration extension.”). On the other hand, the excusable neglect standard
“applies in situations in which there is fault.” Id. Whether excusable neglect exists
“is at bottom an equitable [decision].” United States v. Hooper, 9 F.3d 257, 259 (2d
Cir. 1993) (internal quotation marks omitted). In considering motions for leave to
file a late appeal, district courts are to consider: (1) the danger of prejudice to the
non-movant; (2) the length of the delay and its potential impact upon judicial pro-
ceedings; (3) the reason for the delay, including whether it was in the reasonable
control of the movant; and (4) whether the movant acted in good faith. See id. (citing
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
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“[D]espite the flexibility of ‘excusable neglect’ and the existence of the four-
factor test in which three of the factors usually weigh in favor of the party seeking
the extension, we and other circuits have focused on the third factor: the reason for
the delay, including whether it was within the reasonable control of the movant.”
Silivanch, 333 F.3d at 366 (internal quotation marks omitted). “[T]he equities will
rarely if ever favor a party who fail[s] to follow the clear dictates of a court rule and
. . . we continue to expect that a party claiming excusable neglect will, in the ordi-
nary course, lose under the Pioneer test.” Id. (second alteration in original and in-
ternal quotation marks omitted). Such is the case here.
The record indicates simply that Darling changed his mind about filing an
appeal after his window to do so had closed. Despite being transported between
prison facilities after he was sentenced, Darling spoke twice with defense counsel
during that time and chose not to appeal. He did not clearly indicate that he wished
to appeal until a full month after the appeal period had run. Such a change of mind
is neither “good cause” nor “excusable neglect.”
The district court applied the correct legal test in evaluating Darling’s mo-
tion, and we thus cannot say that it abused its discretion. We observe, however,
that the Pioneer test does not require, nor do we advise, district courts to probe the
merits of a potential late appeal. Such an approach may put a district court in an
undesirable position, as here, of being forced to decide an issue of first impression in
our Circuit (one on which our sister circuits are split) on a motion for reconsidera-
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tion. We express no position on the merits of the underlying appeal, leaving them to
be resolved at some appropriate future proceeding.
We have considered Darling’s remaining arguments and find them to be
without merit. Accordingly, the order of the district court denying Darling’s motion
for a late appeal is AFFIRMED, and Darling’s underlying merits appeal is DIS-
MISSED for lack of appellate jurisdiction.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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