US v. Said Asmar, No. 09-4832 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4832 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SAID ASMAR, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (4:09-cr-00028-H-1) Submitted: February 24, 2010 Decided: March 25, 2010 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Remanded by unpublished per curiam opinion. Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC, Covington, Kentucky, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Said Asmar pled guilty pursuant to a plea agreement to illegal structuring of financial transactions, in violation of 31 U.S.C. ยง 5324(a)(3) and (d) (2006), and was sentenced to sixty-three months in prison. The judgment was imposed on August 11, 2009; however, Asmar did not file a notice of appeal until September 3, 2009. with this arguing court, Asmar the had After Asmar filed his appellate brief Government waived his filed right to a motion appeal to in dismiss, the plea agreement and also that the notice of appeal was not timely filed. In his relevant part opposition that although to his the motion, notice of Asmar appeal argues was in filed outside the prescribed ten-day period, he had requested that the district court grant him an extension to file his notice of appeal. He asks this court to remand the case for the limited purpose of permitting the district court to rule on his motion for extension of time. Under Fed. R. App. P. 4(b)(4), the district court may before or after the time has expired, with or without motion and notice extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by Rule 4(b) for filing the notice. It is clear from the record that Asmar filed his notice of appeal within the applicable period under Rule 4(b)(4). 2 The district court has not addressed Asmar s request or made a determination as to whether he has shown excusable neglect or good cause warranting an extension of time to file a notice of appeal. Accordingly, we remand the case to the district court so it can determine whether Asmar has made excusable neglect or good cause. the requisite showing of Following this limited remand, the record as supplemented will be returned to this court. We defer ruling on the Government s motion to dismiss pending the limited remand. REMANDED 3
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