United States of America, Plaintiff-appellee, v. Glenna Sue Stapleton, Defendant-appellant, 927 F.2d 598 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 927 F.2d 598 (4th Cir. 1991)

Submitted Feb. 4, 1991. Decided Feb. 25, 1991


Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen M. Williams, Senior District Judge. (CR-89-111-B)

Elna Gay Leonard, Copeland, Molinary & Bieger, Abingdon, Va., for appellant.

E. Montgomery Tucker, United States Attorney, Jerry Walter Kilgore, Assistant United States Attorney, Abingdon, Va., for appellee.

W.D. Va.

REMANDED.

Before DONALD RUSSELL, SPROUSE and NIEMEYER, Circuit Judges.

PER CURIAM:


Glenna Sue Stapleton seeks to appeal the district court's judgment entered pursuant to her convictions of conspiring to attempt to damage and destroy a vehicle by explosive means and of inducing and procuring Harold Wayne Stapleton to possess an unregistered explosive device. The jury acquitted her of a third count involving the making of the destructive device.

The district court entered judgment on May 29, 1990, and Stapleton, through counsel, filed her notice of appeal on June 13, 1990. The 10-day period for filing her notice of appeal expired on June 8, 1990. See Fed. R. App. P. 4(b). Stapleton's notice of appeal was thus filed outside of the 10-day filing period but within the 30-day extension period for filing notice of appeal in criminal cases. See Rule 4(b). The district court may grant an extension to file the notice of appeal upon a showing of excusable neglect, with or without motion. Id. Therefore, this action is remanded to the district court with directions to allow Stapleton an opportunity to establish that excusable neglect entitles her to an extension of the 10-day filing period. If there is a finding of excusable neglect, this appeal will proceed; otherwise it will be dismissed for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

REMANDED.