United States v. Pena

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40564 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDREA EMEARY SIMMONS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:96-CR-67-2 -------------------- August 6, 2001

Before JOLLY, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:*

This court must examine the basis of its own jurisdiction

sua sponte if necessary. See Mosley v. Cozby, 813 F.2d 659, 660

(5th Cir. 1987). A timely notice of appeal is a mandatory

precondition to the exercise of appellate jurisdiction. See

United States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985).

Because Simmons’ appeal is from the denial of a motion for new

trial pursuant to Rule 33 of the Federal Rules of Criminal

Procedure, she was required to file her notice of appeal within

10 days of the entry of the district court’s order. See Fed. R.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40564 -2-

App. P. 4(b)(1)(A). The district court’s order denying Simmons’

motion for new trial was entered on April 28, 2000. Simmons did

not file her notice of appeal until May 15, 2000, 17 days later.

Thus, Simmons’ notice of appeal is untimely.

The district court, however, may grant an additional 30 days

in which to file a notice of appeal “upon a finding of excusable

neglect or good cause.” See Fed. R. App. P. 4(b)(4). An

untimely notice of appeal filed within the 30-day period is

customarily treated by this court in criminal cases as a motion

for a determination whether the defendant is entitled to an

extension of time to appeal. See United States v. Golding, 739

F.2d 183, 184 (5th Cir. 1984); see also United States v. Alvarez,

210 F.3d 309, 310 (5th Cir. 2000). Because Simmons filed her

notice of appeal within the 30-day period, we remand this case to

the district court for a determination whether Simmons’ untimely

filing of the notice of appeal was due to excusable neglect or

good cause.

REMANDED.