                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2005

USA v. White
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1026




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"USA v. White" (2005). 2005 Decisions. Paper 1051.
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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 04-1026


                            UNITED STATES OF AMERICA

                                            v.

                                    SHEREE WHITE
                                       Appellant




                           On Appeal From the United States
                                      District Court
                        For the Eastern District of Pennsylvania
                          (D.C. Crim. Action No. 02-cr-00375)
                      District Judge: Hon. Charence C. Newcomer


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 7, 2005

                 BEFORE: AMBRO, STAPLETON and ALARCON,*
                              Circuit Judges

                              (Opinion Filed: June 8, 2005)




Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the Ninth Circuit, sitting
by designation.
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Sheree White appeals from an order of judgment in a criminal case entered on

December 19, 2003. The appeal was filed on January 5, 2004, and White did not seek

and receive an extension under Federal Rule of Appellate Procedure 4(b)(4).

       We may only rule upon the merits of this appeal if, and only if, a determination of

excusable neglect has been properly entered by District Court. In United States v.

McKnight, 593 F.2d 230 (3d Cir. 1979), this court held that it does not have the power to

remand a case to District Court when confronted by a record presenting a question of fact,

resolvable only in District Court, of whether excusable neglect would warrant tardy filing

of appeal. The correct resolution is dismissal without prejudice to an application in

District Court for a ruling upon the question of excusable neglect. Id. at 233.

       Following McKnight, we will therefore dismiss this appeal without prejudice for

want of jurisdiction. If Ms. White secures a determination of excusable neglect from the

District Court, the clerk will assign the appeal to the current panel.




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