15-3877-cr, 15-4178-cr
United States v. Darling

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                             AMENDED SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is gov-
erned by Federal Rule of Appellate Procedure 32.1 and this Court’s Local
Rule 32.1.1. When citing a summary order in a document filed with this
Court, a party must cite either the Federal Appendix or an electronic data-
base (with the notation “Summary Order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 18th day of December, two thousand and seventeen.

Present:
               PETER W. HALL,
               DEBRA ANN LIVINGSTON,
                         Circuit Judges,
               NICHOLAS G. GARAUFIS,
                         District Judge. *


UNITED STATES OF AMERICA,

                       Appellee,

               v.                                                            15-3877-cr
                                                                             15-4178-cr

JOSEPH LEE DARLING,

                       Defendant-Appellant.




*Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New
York, sitting by designation.

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15-3877-cr, 15-4178-cr
United States v. Darling

For Appellant:             BARCLAY T. JOHNSON, Research & Writing Attorney, (Eliz-
                           abeth K. Quinn, Assistant Federal Public Defender; Mi-
                           chael L. Desautels, Federal Public Defender, on the brief),
                           Burlington, Vermont.

For Appellee:              PAUL J. VAN DE GRAAF, Chief Assistant United States At-
                           torney, Criminal Division, (Gregory L. Waples, Wendy L.
                           Fuller, Assistant United States Attorneys, on the brief) for
                           Eugenia A.P. Cowles, Acting United States Attorney for
                           the District of Vermont, Burlington, Vermont.


       Appeal from orders of the United States District Court for the District of Ver-

mont (Reiss, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, AD-

JUDGED, AND DECREED that the order of the district court denying Appellant’s

motion for permission to file a late appeal, before us in Docket No. 15-4178, is AF-

FIRMED, and the late appeal filed in Docket No. 15-3877 is DISMISSED.

       Pursuant to a Rule 11(c)(1)(C) plea agreement, Defendant-Appellant Joseph

Lee Darling was sentenced to thirteen months in prison on a supervised release vio-

lation running consecutive to a 120-month sentence for oxycodone distribution. After

his appeal period had run, Darling moved for leave to file a late appeal. The district

court denied that motion and Darling’s subsequent motion for reconsideration. Dar-

ling ultimately filed two notices of appeal: one from the denial of his motion for leave

to file a late appeal and another untimely appeal from his sentence. We assume the

parties’ familiarity with the underlying facts, the procedural history, the district

court’s rulings, and the arguments presented on appeal.




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15-3877-cr, 15-4178-cr
United States v. Darling

       We review orders denying leave to file a late notice of appeal for abuse of dis-

cretion. United States v. Walls, 163 F.3d 146, 147 (2d Cir. 1998). “Such an order can-

not be set aside by a reviewing court unless it has a definite and firm conviction that

the court below committed a clear error of judgment in the conclusion that it reached

upon a weighing of the relevant factors.” Silivanch v. Celebrity Cruises, Inc., 333 F.3d

355, 362 (2d Cir. 2003) (internal quotation marks omitted). We cannot say that the

district court exceeded the bounds of its discretion here.

       Federal Rule of Appellate Procedure 4(b)(4) permits district courts to grant

leave to file late appeals “[u]pon a finding of excusable neglect or good cause.” Because

Darling’s failure to file his notice of appeal was not due to circumstances beyond his

control, we conclude that the “good cause” standard does not apply. See Fed. R. App.

P. 4(a)(5)(A)(ii) advisory committee’s notes to 2002 amendments (“The good cause

standard applies in situations in which there is no fault—excusable or otherwise. In

such situations, the need for an extension is usually occasioned by something that is

not within the control of the movant. . . . If, for example, the Postal Service fails to

deliver a notice of appeal, a movant might have good cause to seek a post-expiration

extension.”). On the other hand, the excusable neglect standard “applies in situations

in which there is fault.” Id. Whether excusable neglect exists “is at bottom an equita-

ble [decision].” United States v. Hooper, 9 F.3d 257, 259 (2d Cir. 1993) (internal quo-

tation marks omitted). In considering motions for leave to file a late appeal, district

courts are to consider: (1) the danger of prejudice to the non-movant; (2) the length of

the delay and its potential impact upon judicial proceedings; (3) the reason for the



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15-3877-cr, 15-4178-cr
United States v. Darling

delay, including whether it was in the reasonable control of the movant; and (4)

whether the movant acted in good faith. See id. (citing Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).

       “[D]espite the flexibility of ‘excusable neglect’ and the existence of the four-

factor test in which three of the factors usually weigh in favor of the party seeking

the extension, we and other circuits have focused on the third factor: the reason for

the delay, including whether it was within the reasonable control of the movant.”

Silivanch, 333 F.3d at 366 (internal quotation marks omitted). “[T]he equities will

rarely if ever favor a party who fail[s] to follow the clear dictates of a court rule and .

. . we continue to expect that a party claiming excusable neglect will, in the ordinary

course, lose under the Pioneer test.” Id. (second alteration in original and internal

quotation marks omitted). Such is the case here.

       The record indicates simply that Darling changed his mind about filing an ap-

peal after his window to do so had closed. Despite being transported between prison

facilities after he was sentenced, Darling spoke twice with defense counsel during

that time and chose not to appeal. He did not clearly indicate that he wished to appeal

until a full month after the appeal period had run. Such a change of mind is neither

“good cause” nor “excusable neglect.”

       The district court applied the correct legal test in evaluating Darling’s motion,

and we thus cannot say that it abused its discretion. We observe, however, that the

Pioneer test does not require, nor do we advise, district courts to probe the merits of

a potential late appeal. Such an approach may put a district court in an undesirable



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15-3877-cr, 15-4178-cr
United States v. Darling

position, as here, of being forced to decide an issue of first impression in our Circuit

(one on which our sister circuits are split) on a motion for reconsideration. We express

no position on the merits of the underlying appeal, leaving them to be resolved at

some appropriate future proceeding.

       We have considered Darling’s remaining arguments and find them to be with-

out merit. Accordingly, the order of the district court denying Darling’s motion for a

late appeal before us in Docket No. 15-4178 is AFFIRMED, and Darling’s underlying

merits appeal before us in Docket No. 15-3877 is DISMISSED for lack of appellate

jurisdiction.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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