OpenJurist

107 F3d 18 United States v. T Smith

107 F.3d 18

UNITED STATES of America, Plaintiff-Appellee,
v.
Danny T. SMITH, Defendant-Appellant.

No. 96-10323.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 5, 1997.*
Decided Feb. 7, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: CANBY, HAWKINS, and TASHIMA, Circuit Judges.

1

MEMORANDUM**

2

Danny T. Smith, a federal prisoner, appeals his 51-month sentence for wire fraud in violation of 18 U.S.C. § 1343. We dismiss for lack of jurisdiction.

3

The district court entered a judgment of conviction against Smith on June 25, 1996. On July 9, 1996, Smith, represented by counsel, filed an untimely notice of appeal. See Fed.R.App.P. 4(b) (notice of appeal in a criminal case must be filed within ten days). On July 18, 1996, Smith filed a motion for an extension of time to file the notice of appeal based on excusable neglect. See id. (court may extended the time to file a notice of appeal by up to thirty days upon a showing of excusable neglect). On September 18, 1996, the district court denied this motion on the basis that Smith had not shown excusable neglect. Smith did not file a notice of appeal from this order. In his November 21, 1996 opening brief in this court, Smith argues that the district court erred by denying him a two point reduction for acceptance of responsibility and by departing upward under U.S.S.G. § 5K2.5. Nowhere in the brief does Smith argue that the district court erred by denying his motion to file a late notice of appeal. Accordingly, Smith's notice of appeal was untimely, see Fed.R.App.P. 4(b), and the appeal is

4

DISMISSED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3