               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 98-50028
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MICHAEL DEMONBREUN,

                                     Defendant-Appellant.


                       ---------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                       USDC No. A-97-CR-23-7
                       ---------------------
                           June 17, 1998
Before DAVIS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

     This court must examine the basis of its jurisdiction on its

own motion if necessary.    United States v. Lister, 53 F.3d 66, 68

(5th Cir. 1995).   Fed. R. Crim. P. 4(b) requires that a notice of

appeal by a defendant in a criminal case be filed within ten days

of entry of judgment.   The rule allows the district court to

grant an additional 30 days in which to file the notice of appeal

upon a showing of excusable neglect.   This court customarily


     *
        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that this opinion should not be published and is not precedent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. 98-50028
                               - 2 -

treats the filing of an untimely notice of appeal within the 30-

day period as a motion for a determination whether excusable

neglect entitles the defendant to an extension of time to appeal.

See United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).

     The district court’s judgment from which Demonbreun has

appealed was entered on December 11, 1997, and defendant, through

counsel, filed his notice of appeal on December 23, 1997, one day

late but within the 30-day period.   See Fed. R. App. P. 4(b) &

26(a).   We therefore remand the case to the district court for a

determination whether defendant’s untimely filing of the notice

of appeal was due to excusable neglect.   Upon making the

determination, the district court shall return the case to this

court for further proceedings or dismissal, as may be

appropriate.

     REMANDED.
