United States of America, Plaintiff-appellee, v. Danny T. Smith, Defendant-appellant, 107 F.3d 18 (9th Cir. 1997)

MEMORANDUM^** 

Danny T. Smith, a federal prisoner, appeals his 51-month sentence for wire fraud in violation of 18 U.S.C. § 1343. We dismiss for lack of jurisdiction.

The district court entered a judgment of conviction against Smith on June 25, 1996. On July 9, 1996, Smith, represented by counsel, filed an untimely notice of appeal. See Fed. R. App. P. 4(b) (notice of appeal in a criminal case must be filed within ten days). On July 18, 1996, Smith filed a motion for an extension of time to file the notice of appeal based on excusable neglect. See id. (court may extended the time to file a notice of appeal by up to thirty days upon a showing of excusable neglect). On September 18, 1996, the district court denied this motion on the basis that Smith had not shown excusable neglect. Smith did not file a notice of appeal from this order. In his November 21, 1996 opening brief in this court, Smith argues that the district court erred by denying him a two point reduction for acceptance of responsibility and by departing upward under U.S.S.G. § 5K2.5. Nowhere in the brief does Smith argue that the district court erred by denying his motion to file a late notice of appeal. Accordingly, Smith's notice of appeal was untimely, see Fed. R. App. P. 4(b), and the appeal is

DISMISSED.