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United States Court of Appeals,

Fifth Circuit.

No. 95-50201

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Rosendo MONTES, Defendant-Appellant.

Sept. 26, 1995.

Appeal from the United States District Court for the Western

District of Texas; James R. Nowlin, Judge.

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:

Rosendo Montes ("Montes") appeals from the district court's

denial of Montes' motion to file a late notice of appeal from the

district court's order denying him a one-level decrease for the

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b). The

district court, relying upon United States v. Awalt, 728 F.2d 704,

705 (5th Cir.1984), rejected Montes' argument that failure to

receive notice constituted "excusable neglect" under Fed.R.App.P.

4(b). Because the district court did not have the benefit of a

recent decision which modifies the holding in Awalt, we vacate and

remand the order denying Montes' motion.

BACKGROUND

In March of 1993, Montes pleaded guilty to conspiracy to

possess with the intent to distribute marijuana and aiding and

abetting money laundering. He was sentenced to concurrent

sentences of 210 months for each offense, three years of supervised
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release, a $20,000 fine, and a $100 special assessment. This court

affirmed his conviction on direct appeal but remanded the case to

the district court for a determination of whether Montes was

entitled to an additional one-point reduction for acceptance of

responsibility.

On remand, the district court issued a written judgment

denying an additional one-point reduction for acceptance of

responsibility. Montes filed a motion for leave to file a notice

of appeal out-of-time, alleging that he did not receive notice of

the entry of the district court's order. The district court denied

Montes' motion, holding that the delay in filing the notice of

appeal was not due to excusable neglect. Montes timely filed a

notice of appeal of the district court's order denying his motion

for leave to file a notice of appeal out-of-time.

DISCUSSION

Rule 4(b) provides that where a criminal defendant's notice of

appeal is not made within the prescribed ten-day period, "[u]pon a

showing of excusable neglect the district court may ... extend the

time for filing a notice of appeal." Fed.R.App.P. 4(b). The

district court considered and rejected Montes' claim that his

failure to receive notice constituted excusable neglect. The

district court, quoting Awalt, stated that "case law establishes

that lack of notice "is not a basis for a plea of excusable neglect

and does not excuse noncompliance with Rule 4(b).' "

The district court correctly applied the law of this circuit

as it existed at the time of its order. However, since that time
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this circuit has enunciated a different standard for determining

when "excusable neglect" exists. The Supreme Court, reviewing the

excusable neglect standard of Bankruptcy Rule 9006(b)(1), chose to

adopt a more permissive standard for determining when excusable

neglect exists. Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd.

Partnership, --- U.S. ----, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).

This court subsequently extended the Supreme Court's interpretation

of "excusable neglect" in Pioneer to Fed.R.App.P. 4(b). United

States v. Clark, 51 F.3d 42 (5th Cir.1995).

In Clark, we stated that "Pioneer does allow somewhat more

room for judgment in determining whether mistakes of law are

excusable than does the strict standard for excusable neglect

espoused by some of our prior decisions." Id. at 44. We also

expressly disapproved our prior decisions that had strictly

interpreted excusable neglect, to the extent they conflicted with

Pioneer. Id. at 44.

CONCLUSION

In light of the fact that the court below did not have the

benefit of our decision in Clark, we remand this case for

reconsideration by the district court of its order denying Montes'

motion to file a late notice of appeal. In no way does our opinion

address whether the facts of this case constitute "excusable

neglect." For the foregoing reasons, we VACATE and REMAND.