United States v. Reedy

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 24, 2005
Charles R. Fulbruge III
Clerk
No. 03-10511
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS REEDY; JANICE REEDY,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
USDC Nos. 4:00-CR-54-1-Y
4:00-CR-54-2-Y
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Thomas and Janice Reedy appeal the sentences imposed
following remand to the district court for resentencing. The
Government argues that Janice Reedy’s notice of appeal was
untimely filed. Janice Reedy contends that the two appeals have
been consolidated and that the notice of appeal is timely because
it was filed within 10 days of the last entered judgment, which
is the judgment against Thomas Reedy.
*
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this opinion should not be published and is not precedent except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. 03-10511
-2-
A timely notice of appeal is a mandatory precondition to the
exercise of appellate jurisdiction. United States v. Winn, 948
F.2d 145, 153 (5th Cir. 1991). Pursuant to FED. R. APP. P.
4(b)(1)(A)(i), the time for filing a notice of appeal runs from
“the entry of either the judgment or the order being appealed.”
Because Janice Reedy is appealing from the judgment entered
against her, her argument is without merit, and her notice of
appeal is untimely.
A district court may grant a defendant an additional 30 days
in which to file a notice of appeal upon a showing of good cause
or excusable neglect. See FED. R. APP. P. 4(b)(4). Because
Janice Reedy’s notice of appeal was filed within 30 days of the
time for filing a timely notice of appeal, it should be construed
as a motion for an extension of time to file an appeal. See
United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).
Accordingly, the appeals are held in abeyance, and Janice
Reedy’s case is REMANDED to the district court for a finding
under FED. R. APP. P. 4(b)(4). Id. 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; APPEALS HELD IN ABEYANCE PENDING REMAND.