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562 F2d 359 United States v. Umfress

562 F.2d 359

UNITED STATES of America, Plaintiff-Appellee,
v.
Lawrence UMFRESS, Defendant-Appellant.

No. 77-5236
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 4, 1977.

Frank A. Russell, Fulton, Miss. (Court-appointed), for defendant-appellant.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, John R. Hailman, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.

PER CURIAM:

1

Lawrence Umfress was convicted after a jury trial on two counts relating to the false statement of his gross income on his United States individual income tax returns for the calendar years 1972 and 1973, in violation of 26 U.S.C., § 7206. On February 25, 1977, Umfress was sentenced to two terms of eighteen months imprisonment, with the sentences to run consecutively. The prescribed ten day period in which to file a notice of appeal, Rule 4(b), F.R.A.P., thus expired on March 7, 1977. Umfress did not file such notice until March 8, 1977.

2

The notice of appeal not being timely filed, this Court lacks jurisdiction. In the interest of justice, however, we remand the case to the District Court to allow Umfress thirty days in which to move for a determination whether, under Rule 4(b), excusable neglect entitles him to an extension of time to appeal. Should this appeal be brought, it may be decided without further briefing or argument. See e. g. United States v. Lewis, 5 Cir., 1975, 522 F.2d 1367; Cramer v. Wise, 5 Cir., 1974, 494 F.2d 1185. See, also, United States v. Stolarz, 9 Cir., 1976, 547 F.2d 108.

3

REMANDED.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I