                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4461



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SEAN BURT,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-02-70)


Submitted:   October 15, 2004             Decided:   October 26, 2004


Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Edmund John Rollo, Morgantown, West Virginia, for Appellant.
Thomas Edward Johnston, United States Attorney, David J. Perri,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Sean Burt seeks to appeal his conviction and sentence.

In criminal cases, the defendant must file his notice of appeal

within ten days of the entry of judgment.                  Fed. R. App. P.

4(b)(1)(A). With or without a motion, the district court may grant

an extension of time to file of up to thirty days upon a showing of

excusable neglect or good cause.            Fed. R. App. P. 4(b)(4); United

States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).

              The district court entered its judgment on April 28,

2003; the ten-day appeal period expired on May 12, 2003.                 Burt

filed his notice of appeal on May 27, 2003, beyond the ten-day

period but within the excusable neglect period. Because the notice

of   appeal    was   filed   within   the    excusable   neglect   period,   we

remanded the case to the district court to determine whether Burt

could demonstrate excusable neglect or good cause warranting an

extension of the ten-day appeal period.            On remand, the district

court found that Burt had not established excusable neglect.                 We

have reviewed the record and conclude the district court did not

abuse its discretion in making this determination.

              Because the district court declined to extend the appeal

period based on excusable neglect, we dismiss the appeal for lack

of jurisdiction.*      We dispense with oral argument because the facts



      *
      We deny as moot the Government’s motion to dismiss the appeal
based on Burt’s appellate review waiver.

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and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.



                                                         DISMISSED




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