           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 20, 2008

                                     No. 07-40121                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

REGINALD LAMON COLEMAN

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              Case No. 4:06-cr-00012


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Reginald Lamon Coleman pled guilty to one count of conspiracy to
distribute or dispense, or possess with the intent to distribute or dispense,
cocaine. On January 18, 2007, the district court sentenced Coleman to 210
months in prison. The court’s judgment was filed on the same day. The ten-day
period for filing notice of appeal in a criminal proceeding expired on February
1, 2007. Fed. R. App. P. 4(b)(1)(A). Coleman filed his notice of appeal on


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-40121

February 5, 2007. Over one year later, the government filed a motion to dismiss
Coleman’s appeal for untimeliness.
      Coleman’s failure to comply with the time limitations imposed by Federal
Rule of Appellate Procedure 4(b) does not deprive this Court of jurisdiction over
his appeal. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007).
Still, compliance with Rule 4(b)(1)(A) is required so long as the government has
not waived its application. Id. The government did not waive the rule here.
      However, Rule 4(b)(4) permits a district court to extend the time for filing
a notice of appeal for a period not to exceed thirty days if the failure to comply
with the ten-day limitation was the result of “excusable neglect or good cause.”
“In criminal cases, this Court has customarily treated a late notice filed after the
expiration of the ten-day period and before the lapse of forty days (ten plus
thirty), as a motion for a determination as to whether excusable neglect entitles
a defendant to an extension of time to appeal.” United States v. Awalt, 728 F.2d
704, 705 (5th Cir. 1984).
      Coleman’s notice of appeal was filed within thirty days of February 1,
2007. The district court could have granted an extension if it found that the
requirements of Rule 4(b)(4) had been met. The government never raised the
issue of untimeliness in the district court, and only recently raised the point
here. Thus, we remand this case so that the district court may determine
whether Coleman is entitled to an extension of the time under Rule 4(b)(4). See
United States v. Winn, 948 F.2d 145, 153 n.24 (5th Cir. 1991).
      For the foregoing reasons, this case is REMANDED to the district court
for the limited purpose of determining whether excusable neglect entitles
appellant to an extension of time to appeal. The district court is directed to
allow Coleman thirty days in which to move for said determination. If the
district court grants an extension, thereby perfecting this appeal, this Court will
not require additional briefing on the merits.

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