United States of America v. Sean Burt

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

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*We deny as moot the Government’s motion to dismiss the appeal
based on Burt’s appellate review waiver.
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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

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and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED

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