United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 7, 2004
Charles R. Fulbruge III
Clerk
No. 03-60457
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALEGRIA-CAMPA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CR-126-1
--------------------
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Court-appointed counsel for Jose Alegria-Campa (“Alegria”)
has filed a motion seeking leave to withdraw and a brief as
required by Anders v. California, 386 U.S. 738 (1967). Counsel
has also filed a motion to waive the requirements of FED. R. APP.
P. 32(a)(4). Alegria pleaded guilty to illegally re-entering the
United States after having been deported, and he was sentenced to
79 months’ imprisonment and three years of supervised release.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-60457
-2-
We examine the basis of our jurisdiction on our own motion.
See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely
notice of appeal is a prerequisite to the exercise of appellate
jurisdiction, and the lack of a timely notice mandates dismissal
of the appeal. United States v. Garcia-Machado, 845 F.2d 492,
493 (5th Cir. 1988). Alegria had 10 days from the entry of the
judgment on March 24, 2003, that is until April 7, 2003, to file
a timely notice of appeal. See FED. R. APP. P. 4(b)(1)(A).
Alegria’s notice of appeal, which was filed after entry of the
amended judgment and dated April 28, 2003, was untimely.
See United States v. Lewis, 921 F.2d 563, 565 (5th Cir. 1991).
A district court may grant a defendant an additional 30 days
in which to file a notice of appeal upon a showing of excusable
neglect or good cause. See FED. R. APP. P. 4(b)(4). Alegria’s
notice of appeal, which was filed within this 30-day period,
sufficed as a motion for a finding on excusable neglect or good
cause. See United States v. Golding, 739 F.2d 183, 184 (5th Cir.
1984).
Accordingly, counsel’s motions are held in abeyance and the
case is REMANDED to the district court for a finding under
FED. R. APP. P. 4(b)(4). Id. Upon making the finding, the
district court shall promptly return the case to this court for
dismissal or further proceedings, as may be appropriate.
REMANDED; MOTIONS HELD PENDING REMAND.