United States of America, Plaintiff-appellee, v. Ronald William Pelton, Defendant-appellant.united States of America, Plaintiff-appellee, v. Ronald William Pelton, Defendant-appellant, 905 F.2d 1532 (4th Cir. 1990)

Ronald William Pelton, a federal prisoner, brought a motion for reduction of sentence under Fed. R. Crim. P. 35(b), as applied to offenses committed before November 1, 1987. The district court denied the motion because it was not filed within 120 days of the Supreme Court's denial of certiorari on Pelton's appeal of his conviction. See United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert. denied, 56 U.S.L.W. 3789 (U.S. May 16, 1988) (No. 87-6433). The district court's order was entered on June 8, 1989; however, Pelton did not receive the order until June 21, 1989, after the appeal period had expired. Fed. R. App. P. 4(b).

Pelton gave his notice of appeal to prison authorities for mailing on June 26, 1989, five days after he received the order. He also moved for an extension of time to appeal based upon excusable neglect. The district court denied the motion for extension of time, holding that Pelton had failed to show excusable neglect. Pelton appealed the denial of the motion.

Pelton's notice of appeal of the denial of his Rule 35 motion was untimely. Under Fed. R. App. P. 4(b), this Court does not have jurisdiction to consider the appeal unless the appeal period is extended based on excusable neglect.

The district court's denial of Pelton's motion for extension of time is reviewed on an abuse of discretion standard. Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). Because Pelton did not receive the district court's order within the appeal period, his failure to file a timely notice of appeal arguably formed the basis for a finding of excusable neglect. Renfield v. Continental Casualty Corp., 818 F.2d 596, 602 (7th Cir. 1987); Cosmopolitan Aviation Corp. v. New York State Dep't of Transportation, 763 F.2d 507, 514 (2d Cir.), cert. denied, 474 U.S. 1032 (1985); United States v. Virginia, 508 F. Supp. 187, 192 (E.D. Va. 1981). However, Pelton's appeal is without merit because the district court did not have jurisdiction over his untimely Rule 35 motion. Therefore his appeal, even if timely, may be dismissed as frivolous.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid in the decisional process.

DISMISSED.