United States v. Moreno

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 13, 2000
• Docket: 98-20788
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20788 USDC No. H-93-CR-172-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MORENO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas - - - - - - - - - - July 23, 1999 Before DAVIS, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

Juan Moreno, federal prisoner # 46292-079, appeals from the

district court’s determination on remand that his untimely notice

of appeal from the denial of his motion for a new trial was not

the result of excusable neglect under Fed. R. App. P. 4(b)(4).

This court reviews for an abuse of discretion the district

court's determination of excusable neglect under Rule 4(b).

United States v. Clark, 51 F.3d 42, 43 n.5 (5th Cir. 1995). When

“the rule at issue is unambiguous, a district court’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20788 -2-

determination that the neglect was inexcusable is virtually

unassailable.” Halicki v. Louisiana Casino Cruises, Inc., 151

F.3d 465, 470 (5th Cir. 1998), cert. denied, 119 S. Ct. 1143

(1999).

There was nothing unusual or difficult about noticing an

appeal in this case, and Moreno does not allege confusion or

ignorance. Given the straightforward nature of the case, the

district court did not abuse its discretion in finding that

Moreno’s failure to file a timely notice of appeal was

inexcusable. Accordingly, the appeal is DISMISSED for lack of

jurisdiction. Fed. R. App. P. 3(a)(1).