Summary Calendar UNITED STATES OF AMERICA v. Marvin Bcolar

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30754
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MARVIN B COLAR
Defendant - Appellant
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Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 98-CR-130-1-A
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June 14, 2000
Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Marvin B. Colar argues that the district court abused its
discretion in denying his motion for extension of time to file an
untimely notice of appeal based on his excusable neglect. Colar
argues that he should have been allowed to present evidence of
his excusable neglect at an evidentiary hearing.
“[A] misconstruction of the rules–especially when their
language is plain–will rarely satisfy the `excusable neglect’
standard.” Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d

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No. 99-30754 c/w 99-31108
-2-
465, 469 (5th Cir. 1998). If “the rule at issue is unambiguous,
a district court’s determination that the neglect was inexcusable
is virtually unassailable.” Id. at 470.
Fed. R. App. P. 4(b)(1)(A)(i) provides that a notice of
appeal must be filed in a criminal case within ten days of entry
of judgment. The rule is clear and unambiguous. Colar has not
asserted that he was unaware of or was mislead about the
application of the ten-day rule. Colar has not provided the
court with any valid reason why he was unable to comply with the
rule.
Nor has Colar demonstrated that he possessed evidence that
could have been presented at an evidentiary hearing that would
have established excusable neglect. “[I]nadvertence, ignorance
of the rules, or mistakes construing the rules do not usually
constitute `excusable’ neglect.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 391. (1993)
The mere fact that Colar initially received an improper form is
not a sufficient basis for failing to file a timely notice.
The district court did not abuse its discretion in denying
Colar’s motion for an extension of time to file his untimely
notice of appeal.
Colar has not argued on appeal that he placed his notice of
appeal in the prison mailing system prior to or on the last day
of the appeal deadline. Therefore, this issue is deemed
abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
APPEALS DISMISSED.

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