                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       March 29, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                No. 09-7065
                                                  (D. Ct. No. 6:07-CR-00037-JHP-1)
 JAMES BRIAN WRIGHT,                                          (E.D. Okla.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, KELLY, and HOLMES, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Defendant-appellant James Brian Wright appeals from the district court’s order

denying his motion to file an untimely appeal. We have jurisdiction under 28 U.S.C.

§ 1291 and AFFIRM.




       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   I. BACKGROUND

       In October 2007, Mr. Wright pleaded guilty to two counts of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In his plea agreement, Mr.

Wright generally waived his right to appeal his sentence, but he retained a limited right to

appeal the use of a prior state conviction to enhance his sentence. On February 15, 2008,

the district court sentenced him to 190 months’ imprisonment. Mr. Wright subsequently

succeeded in having the prior state conviction vacated and filed a motion, pursuant to the

limited right he retained in his plea agreement, to vacate his federal sentence. The district

court granted his motion and re-sentenced him to 115 months’ imprisonment on January

26, 2009.

       Immediately after the re-sentencing hearing, Mr. Wright met with his attorney,

Rob Ridenour. During that discussion, Mr. Wright inquired about the possibility of

appealing his sentence. Mr. Ridenour informed Mr. Wright that there was no legally

sound basis on which he could appeal, and at the end of the discussion, Mr. Ridenour

believed Mr. Wright did not wish to pursue an appeal.

       On February 3, 2009, Mr. Wright sent a pro se letter to the district court in which

he attempted to object to his January 26 sentence. The district court struck Mr. Wright’s

pro se filing because he was represented by counsel, ruling that “[a]ll pleadings shall be

filed by counsel of record.” Then, on February 9, 2009, the court entered its Amended

Judgment and Order which reflected Mr. Wright’s 115 month sentence.

       On March 5, 2009, Mr. Wright sent another pro se letter to the district court in

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which he sought leave to file an untimely notice of appeal. In the letter, Mr. Wright

argued that he should be allowed to file an untimely appeal because he had specifically

asked Mr. Ridenour to file an appeal on his behalf and Mr. Ridenour refused. The district

court entered an order in which it set a hearing on Mr. Wright’s motion and directed Mr.

Wright to show excusable neglect or good cause for filing a late notice of appeal. At the

hearing, Mr. Ridenour testified that Mr. Wright had never asked him to file an appeal, and

Mr. Wright’s new counsel argued to the contrary, positing that Mr. Ridenour’s refusal to

file an appeal when specifically asked constituted good cause for Mr. Wright’s late filing.

The district court found Mr. Ridenour’s testimony credible and concluded that Mr.

Wright failed to show excusable neglect or good cause for his late filing. Alternatively,

the district court concluded that Mr. Wright had waived his right to appeal in his plea

agreement. Thus, the district court denied Mr. Wright’s motion and he now appeals from

that denial.

                                     II. DISCUSSION

       At the time Mr. Wright was sentenced, the Federal Rules of Appellate Procedure

generally required that a criminal defendant file a notice of appeal within ten days after

the entry of the judgment from which he seeks to appeal. See Fed. R. App. P. 4(b)(1)(A)

(abrogated 2009). A district court has discretion, however, to extend the time for filing a

notice of appeal for an additional thirty days if it finds excusable neglect or good cause

for a late filing. See id. § 4(b)(4). If a criminal defendant files a notice of appeal after the

district court announces its decision but before it enters judgment on that decision, the

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Rules treat the notice of appeal as having been filed the day the district court entered

judgment. See id. § 4(b)(2).

       A district court’s refusal to extend the time for filing a notice of appeal is itself an

appealable decision which we generally review for abuse of discretion. Bishop v.

Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004). Under this standard, we reverse the

district court only if we have “a definite and firm conviction that the lower court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Id. (quotations omitted).

       To the extent Mr. Wright argues that the district court erred by not finding

excusable neglect or good cause for his untimely March 5 filing, that argument is without

merit. At the hearing on whether to accept Mr. Wright’s late filing, Mr. Wright argued

that Mr. Ridenour’s refusal to file a timely notice of appeal after Mr. Wright had

explicitly requested that he do so constituted good cause. The only evidence presented at

the hearing, however, was Mr. Ridenour’s testimony that Mr. Wright had never asked

him to file an appeal and that he believed Mr. Wright had no desire to appeal his

sentence. Indeed, Mr. Wright did not present evidence of his own or testify at the

hearing. Accordingly, the only evidence presented to the district court supported its

finding that Mr. Wright did not show good cause for his late filing. Therefore, that

decision was not an abuse of discretion.

       Mr. Wright also argues, for the first time on appeal, that the district court erred by

not accepting his February 3 pro se letter as a timely notice of appeal. According to Mr.

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Wright, that pro se filing should have been accepted and, pursuant to Fed. R. App. P.

4(b)(4), treated as if it were filed on February 6, the day the court entered judgment.

Because he did not raise this argument below, however, we review it for plain error.

United States v. Jones, 530 F.3d 1292, 1298 (10th Cir. 2008). Under the plain error

standard, the appellant has the heavy burden of demonstrating “(1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Herrera v. City of Albuquerque, 589 F.3d

1064, 1075 (10th Cir. 2009) (quotations omitted).

       Although a criminal defendant has a constitutional and statutory right to proceed

pro se, he must invoke that right by clearly and unequivocally asserting his intention to

represent himself. United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995).

Furthermore, a criminal defendant does not have a constitutional right to a “hybrid form

of representation.” Id. Rather, courts have discretion to accept or deny pro se filings

made by represented litigants. See United States v. Bennett, 539 F.2d 45, 49 (10th Cir.

1976) (“[P]ermission for [hybrid representation] [is] recognized as being discretionary

with the trial court”). Because Mr. Wright did not unequivocally assert his desire to

represent himself prior to sending his February 3 pro se letter, the district court had broad

discretion to accept or reject that filing. On appeal, Mr. Wright has not presented any

reason why the district court’s rejection of the February 3 letter was an abuse of the

court’s broad discretion. Accordingly, Mr. Wright cannot even show that the district




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court’s rejection of the letter was error, let alone that it was plain error.1

                                     III. CONCLUSION

       For the foregoing reasons, we AFFIRM the order of the district court.

                                             ENTERED FOR THE COURT,



                                             Deanell Reece Tacha
                                             Circuit Judge




       1
        Because we affirm the district court’s refusal to extend Mr. Wright’s time to file a
notice of appeal on other grounds, we do not examine the propriety of the district court’s
alternative holding that Mr. Wright waived his right to appeal in his plea agreement.

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