United States v. Mata-Gomez

* 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that this opinion should not be published and is not precedent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. 00-50159
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL MATA-GOMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-99-CR-592-1
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December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
In this direct criminal appeal, Joel Mata-Gomez (“Mata”)
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,” pursuant to FED. R. APP.
P. 4(b)(4). Mata argues that his attorney’s having mistakenly
relied on the counting rule of FED. R. CRIM. P. 45(a), rather than
the appropriate rule, FED. R. APP. P. 26, amounted to “excusable
neglect.”

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No. 00-50159
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Rule 4(b)(1)(A)(i), FED. R. APP. P., provides that a notice
of appeal must be filed in a criminal case within ten days of
entry of judgment. It is not disputed that Mata filed his notice
of appeal three days late.
“[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
465, 469 (5th Cir. 1998) (applying nearly identical excusable-
neglect rule of FED. R. APP. P. 4(a)(5) in civil appeal). If “the
rule at issue is unambiguous, a district court’s determination
that the neglect was inexcusable is virtually unassailable.” Id.
at 470. In a case almost identical to this one, this court
opined that FED. R. APP. P. 4(a)(1)(B) and the counting rule of
FED. R. APP. P. 26(a) were “unambiguous.” United States v. Clark,
51 F.3d 42, 44 (5th Cir. 1995). Accordingly, the district court
did not abuse its discretion in determining that Mata had made no
showing of excusable neglect.
APPEAL DISMISSED.

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