Unpublished Disposition, 884 F.2d 582 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 582 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Rodney S. McCOMBS, Defendant-Appellant.

No. 88-3025.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 10, 1989.Decided Aug. 25, 1989.



Rodney S. McCombs was sentenced to two concurrent eight year sentences following conviction for possession of cocaine with intent to distribute and conspiracy to distribute cocaine. On August 25, 1987, McCombs filed a motion to reduce his sentence. The court denied this motion by order filed October 22. McCombs' counsel, Nancy Shaw, received notice of the denial on October 23, 1987. She wrote a letter to McCombs on October 28 stating he must notify her by November 2 of an intent to file an appeal. The letter was hand-delivered to McCombs at Cook Inlet Pretrial Facility on October 29. Shaw's affidavit filed in support of her motion to extend the time to file a notice of appeal stated on "information and belief" that the letter did not actually reach McCombs until November 2. The affidavit further indicated that and McCombs had no opportunity to use the prison's telephone until November 3. On November 3, McCombs called Shaw and left a message that he would call again the next day. On November 4, McCombs reached Shaw and informed her he wished to file a notice of appeal. On November 10, 1987, Shaw filed a motion to accept a late-filed Notice of Appeal, which the district court denied. We review for abuse of discretion, Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir. 1988), and reverse.

The district court's short order held that " [t]his case appears to be controlled by United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir. 1986)." Avendano-Camacho, however, dealt with a motion to accept a late appeal that was filed after the 30 day extension period allowed by Federal Rule of Appellate Procedure 4(b). The motion that is the subject of this appeal was made within the 30 day period. Therefore, Avendano-Camacho is inapplicable.

We remand this case to the district court so that it may apply the correct standards to a motion to accept a late-filed appeal. See United States v. Houser, 804 F.2d 565, 569 (9th Cir. 1986).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3