United States of America v. Sheree White

NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-1026
UNITED STATES OF AMERICA
v.
SHEREE WHITE
Appellant
On Appeal From the United States
District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 02-cr-00375)
District Judge: Hon. Charence C. Newcomer
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 7, 2005
BEFORE: AMBRO, STAPLETON and ALARCON,*
Circuit Judges
(Opinion Filed: June 8, 2005)
Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the Ninth Circuit, sitting
by designation.

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2
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Sheree White appeals from an order of judgment in a criminal case entered on
December 19, 2003. The appeal was filed on January 5, 2004, and White did not seek
and receive an extension under Federal Rule of Appellate Procedure 4(b)(4).
We may only rule upon the merits of this appeal if, and only if, a determination of
excusable neglect has been properly entered by District Court. In United States v.
McKnight, 593 F.2d 230 (3d Cir. 1979), this court held that it does not have the power to
remand a case to District Court when confronted by a record presenting a question of fact,
resolvable only in District Court, of whether excusable neglect would warrant tardy filing
of appeal. The correct resolution is dismissal without prejudice to an application in
District Court for a ruling upon the question of excusable neglect. Id. at 233.
Following McKnight, we will therefore dismiss this appeal without prejudice for
want of jurisdiction. If Ms. White secures a determination of excusable neglect from the
District Court, the clerk will assign the appeal to the current panel.

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