US v. Sergio Mujica

Filing

OPINION/ORDER DIRECTING LIMITED REMAND filed by AD, BMK and JAW [4CCA retains jurisdiction]. Originating case number: 5:09-cr-00015-SGW-RSB-1,5:12-cv-80452-SGW-RSB Copies to all parties and the district court/agency. Mailed to: Sergio Mujica. [999127973] [13-6524]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6524

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO MUJICA,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Samuel G. Wilson,
District Judge.
(5:09-cr-00015-SGW-RSB-1; 5:12-cv-80452-SGWRSB)

Submitted:

June 10, 2013

Decided:

June 12, 2013

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Remanded by unpublished per curiam opinion.

Sergio Mujica, Appellant Pro Se.
Sharon Burnham, Craig Jon
Jacobsen,
I,
Assistant
United
States
Attorneys,
Roanoke,
Virginia; Grayson A. Hoffman, Assistant United States Attorney,
Harrisonburg, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sergio

Mujica

seeks

to

appeal

the

district

court’s

order denying his 28 U.S.C.A. § 2255 (West Supp. 2012) motion.
For the reasons that follow, we remand to the district court.
In

civil

cases

in

which

the

United

States

or

its

officer or agency is a party, parties have sixty days after the
entry of the district court's final judgment or order to note an
appeal.

Fed. R. App. P. 4(a)(1)(B).

A district court may

extend the time to appeal upon a motion filed within thirty days
after

expiration

excusable

neglect

of
or

the

prescribed

good

cause.

“mandatory and jurisdictional.”
Corr.,

434

U.S.

257,

264

time

and

This

a

appeal

showing

of

period

is

Browder v. Director, Dep’t of

(1978)

(quoting

United

States

v.

Robinson, 361 U.S. 220, 229 (1960)).
The district court’s order was filed and entered on
its docket on January 24, 2013.

The district court received

Mujica’s undated notice of appeal on April 4, 2013.
came in an envelope postmarked April 1, 2013. *

The notice

Accompanying the

notice was Mujica’s request for a copy of the court’s order
denying his § 2255 motion.
2013.

The request was dated March 30,

The notice of appeal was received after the sixty-day

*

For the purpose of this appeal, we assume that the date of
the postmark is the filing date.
See Fed. R. App. P. 4(c);
Houston v. Lack, 487 U.S. 266 (1988).

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appeal period expired but before the expiration of the thirtyday excusable neglect period.

In the request accompanying the

notice of appeal, Mujica stated that he had been in transit,
transferring from one prison to another and that during that
time it is the Bureau of Prisons’ policy not to give him access
to litigation material.

He also stated that he learned that his

§ 2255 motion was denied.

He further noted that if his notice

of appeal was late to “please advise me how I may proceed to get
an

appeal.”

We

liberally

construe

Mujica’s

notice

and

the

accompanying request as a motion for an extension of time to
file his appeal.
Because

the

notice

of

appeal

was

filed

within

the

excusable neglect period and because the district court has not
ruled on the motion for an extension, we remand this case to the
district court for the limited purpose of enabling the district
court to determine whether Mujica has shown excusable neglect or
good

cause

period.

warranting

an

extension

of

the

sixty-day

appeal

The record, as supplemented, will then be returned to

this court for further consideration.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
REMANDED

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