United States v. Castillo-Lagunas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 12, 2005

Charles R. Fulbruge III
Clerk
No. 05-40436
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO CASTILLO-LAGUNAS,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-394-ALL
--------------------

Before JONES, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Pedro Castillo-Lagunas pleaded guilty to a one-count

indictment charging him with being found in the United States on

July 6, 2004, following deportation. The district court granted

a downward departure and sentenced Castillo-Lagunas to 46 months

in prison and a three-year term of supervised release. Castillo-

Lagunas did not timely file a notice of appeal.

On December 29, 2004, the district court received a undated

letter from Castillo-Lagunas asking to appeal his sentence. The

*
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this opinion should not be published and is not precedent except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. 05-40436
-2-

district court construed Castillo-Lagunas’s letter as a motion

under FED R. APP. P. 4(b)(4) for an extension of time to file a

notice of appeal and denied the motion.

Castillo-Lagunas contends that the district court erred in

determining that he had not shown good cause for the untimely

filing of the notice of appeal. The district court’s finding on

excusable neglect is reviewed for an abuse of discretion. United

States v. Clark, 51 F.3d 42, 43 n.5 (5th Cir. 1995). Castillo-

Lagunas has shown no prejudice. Castillo-Lagunas has given no

reason for the delay in filing a notice of appeal. Castillo-

Lagunas’s assertions in his motion for extension are in direct

contradiction to his statements in open court and indicate that

he was not acting in good faith in seeking to appeal his

sentence. The district court did not abuse its discretion in

determining that Castillo-Lagunas had not shown excusable neglect

for the untimely filing of the notice of appeal. See Clark, 51

F.3d at 43–44.

APPEAL DISMISSED.