15-3877-cr (L)
United States v. Darling

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     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 da-
tabase (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 13th day of June, 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.




For Appellant:                 BARCLAY T. JOHNSON, Research & Writing Attorney,
                               (Elizabeth K. Quinn, Assistant Federal Public Defender;



*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 (L)
United States v. Darling

                           Michael 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

Vermont (Reiss, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, AD-

JUDGED, AND DECREED that the orders of the district court are AFFIRMED

in part, and the appeal is DISMISSED in part.

       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. Af-

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

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

Darling 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 as-

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

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

       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

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


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United States v. Darling

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.” Be-

cause Darling’s failure to file his notice of appeal was not due to circumstances be-

yond 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 Post-

al 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 equitable [decision].” United States v. Hooper, 9 F.3d 257, 259 (2d

Cir. 1993) (internal quotation 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 pro-

ceedings; (3) the reason for the 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)).



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United States v. Darling

       “[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 ordi-

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

ternal quotation marks omitted). Such is the case here.

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

appeal 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 mo-

tion, 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 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 reconsidera-




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United States v. Darling

tion. 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

without merit. Accordingly, the order of the district court denying Darling’s motion

for a late appeal is AFFIRMED, and Darling’s underlying merits appeal is DIS-

MISSED for lack of appellate jurisdiction.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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