UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL J. CONCESSI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-01-60; CA-03-320-2)
Submitted: December 10, 2004 Decided: January 5, 2005
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael J. Concessi, Appellant Pro Se. Alan Mark Salsbury,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael J. Concessi seeks to appeal the district court’s
denial of his motion under 28 U.S.C. § 2255 (2000). Parties in a
civil action in which the United States is a party have sixty days
following a final order in which to file a notice of appeal. Fed.
R. App. P. 4(a)(1)(B). A district court may extend the time to
appeal upon motion filed within thirty days after expiration of the
prescribed time, and a showing of excusable neglect or good cause.
Fed. R. App. P. 4(a)(5).
The district court entered its order dismissing
Concessi’s § 2255 motion on October 30, 2003. Concessi’s notice of
appeal was filed on December 30, 2003, one day after the sixty-day
period expired, but within the excusable neglect period. Because
Concessi appeared to move for an extension of time pursuant to Rule
4(a)(5), we remanded the case to the district court to determine
whether Concessi could demonstrate excusable neglect or good cause
warranting an extension of the sixty-day appeal period. On remand,
the district court found that Concessi had not established
excusable neglect. We have reviewed the record and conclude the
district court did not abuse its discretion in making this
determination.
Because the district court declined to extend the appeal
period based on excusable neglect, we dismiss the appeal for lack
of jurisdiction. We dispense with oral argument because the facts
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and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED
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