United States v. Concessi

119 F. App'x 445

Opinion

PER CURIAM:

Michael J. Concessi seeks to appeal the district court’s denial of his motion under 28 U.S.C. § 2255 (2000). Parties in a civil action in which the United States is a party have sixty days following a final order in which to file a notice of appeal. Fed. R.App. P. 4(a)(1)(B). A district court may extend the time to appeal upon motion filed within thirty days after expiration of the prescribed time, and a showing of excusable neglect or good cause. Fed. R.App. P. 4(a)(5).

The district court entered its order dismissing Concessi’s § 2255 motion on October 30, 2003. Concessi’s notice of appeal was filed on December 30, 2003, one day after the sixty-day period expired, but within the excusable neglect period. Because Concessi appeared to move for an extension of time pursuant to Rule 4(a)(5), we remanded the case to the district court to determine whether Concessi could demonstrate excusable neglect or good cause warranting an extension of the sixty-day appeal period. On remand, the district court found that Concessi had not established excusable neglect. We have reviewed the record and conclude the district court did not abuse its discretion in making this determination.

Because the district court declined to extend the appeal period based on excusable neglect, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED