United States v. Newby

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 3, 2005
• Docket: 05-4155
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4155

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CLYDE HENRY NEWBY, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (CR-04-39)

Submitted: July 22, 2005 Decided: August 3, 2005

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Remanded by unpublished per curiam opinion.

Frances Hemsley Pratt, Michael Stefan Nachmanoff, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Ronald Andrew Bassford, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Clyde Henry Newby, Jr. seeks to appeal his conviction and

sentence. In criminal cases, the defendant must file his notice of

appeal within ten days of the entry of judgment. Fed. R. App. P.

4(b)(1)(A). With or without a motion, the district court may grant

an extension of time to file of up to thirty days upon a showing of

excusable neglect or good cause. Fed. R. App. P. 4(b)(4); United

States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).

The district court entered its judgment on December 15,

2004; the ten-day appeal period expired on December 30, 2004.

Newby filed his notice of appeal after the ten-day period expired

but within the thirty-day excusable neglect period. Because the

notice of appeal was filed within the excusable neglect period, we

remand the case to the district court for the court to determine

whether Newby has shown excusable neglect or good cause warranting

an extension of the ten-day appeal period. The record, as

supplemented, will then be returned to this court for further

consideration.

REMANDED

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