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  • United States v. Burt, 4th Cir. (2004)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit in the case United States v. Sean Burt. The court dismissed Burt's appeal of his conviction and sentence. Specifically, the district court entered judgment on April 28, 2003, but Burt did not file his notice of appeal until May 27, 2003, outside the 10-day filing period but within the 30-day excusable neglect period. The appeals court remanded to the district court to determine if there was excusable neglect. The district court found there was no excusable neglect. The appeals court then determined the district court did not abuse its discretion in that finding, so it dismissed the appeal for lack of jurisdiction.

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    Filed: 2004-10-26 Precedential Status: Non-Precedential Docket: 03-4461

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit in the case United States v. Sean Burt. The court dismissed Burt's appeal of his conviction and sentence. Specifically, the district court entered judgment on April 28, 2003, but Burt did not file his notice of appeal until May 27, 2003, outside the 10-day filing period but within the 30-day excusable neglect period. The appeals court remanded to the district court to determine if there was excusable neglect. The district court found there was no excusable neglect. The appeals court then determined the district court did not abuse its discretion in that finding, so it dismissed the appeal for lack of jurisdiction.

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    Public Domain
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    5 views3 pages

    United States v. Burt, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit in the case United States v. Sean Burt. The court dismissed Burt's appeal of his conviction and sentence. Specifically, the district court entered judgment on April 28, 2003, but Burt did not file his notice of appeal until May 27, 2003, outside the 10-day filing period but within the 30-day excusable neglect period. The appeals court remanded to the district court to determine if there was excusable neglect. The district court found there was no excusable neglect. The appeals court then determined the district court did not abuse its discretion in that finding, so it dismissed the appeal for lack of jurisdiction.

    Copyright:

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 03-4461

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    SEAN BURT,
    Defendant - Appellant.

    Appeal from the United States District Court for the Northern
    District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
    District Judge. (CR-02-70)

    Submitted:

    October 15, 2004

    Decided:

    October 26, 2004

    Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Edmund John Rollo, Morgantown, West Virginia, for Appellant.


    Thomas Edward Johnston, United States Attorney, David J. Perri,
    Assistant United States Attorney, Wheeling, West Virginia, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Sean Burt 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 April 28,
    2003; the ten-day appeal period expired on May 12, 2003.

    Burt

    filed his notice of appeal on May 27, 2003, beyond the ten-day
    period but within the excusable neglect period. Because the notice
    of

    appeal

    was

    filed

    within

    the

    excusable

    neglect

    period,

    we

    remanded the case to the district court to determine whether Burt


    could demonstrate excusable neglect or good cause warranting an
    extension of the ten-day appeal period.

    On remand, the district

    court found that Burt 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

    We deny as moot the Governments motion to dismiss the appeal


    based on Burts appellate review waiver.
    - 2 -

    and legal contentions are adequately presented in the materials


    before the court and argument would not aid the decisional process.

    DISMISSED

    - 3 -

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