UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4236

GINA MICHELLE WILSON,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge.

(CR-97-699)

Submitted: February 25, 1999

Decided: March 11, 1999

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

James Darrell Dotson, Jr., Lake City, South Carolina, for Appellant.

William Earl Day, II, Assistant United States Attorney, Florence,

South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Gina Michelle Wilson pled guilty to fraud in violation of 18 U.S.C.

§§ 1341, 2 (1994). The court entered its judgment on February 4,

1998. Wilson was continued on bond with instructions to self report;

the institution and date for reporting were then unknown. On March

23, 1998, the district court entered a letter from Wilson dated March

11, 1998, and postmarked March 19, 1998. The district court treated

the letter as a pro se notice of appeal and motion for extension of time

to file an appeal.

In criminal cases, the defendant must file the notice of appeal

within ten days of the entry of judgment. With or without a motion,

when the notice of appeal is filed within thirty days of the expiration

of the appeal period, the district court may grant an extension of time

to file not exceeding thirty days upon a showing of excusable neglect.

See Fed. R. App. P. 4(b); United States v. Reyes, 759 F.2d 351, 353

(4th Cir. 1985). Wilson's notice of appeal was filed forty-seven days

after judgment. If Wilson was in custody at the time she attempted to

mail the notice of appeal, it could be deemed to be filed upon delivery

to prison officials. See Houston v. Lack, 487 U.S. 266, 270 (1988).

However, the envelope was postmarked in South Carolina and Wilson's home address, rather than the federal institution in Florida

where she is now incarcerated, was on both the envelope and the letter indicating her desire to appeal. Because the postmark was fortythree days after judgment and outside the excusable neglect period,

if Wilson was not in custody when the notice of appeal was mailed,

the district court was without jurisdiction to grant her an extension of

time to file. See Reyes, 859 F.2d at 353. Without making a determination on this point, the district court denied Wilson an extension of

time, finding that she had not shown excusable neglect for failing to

meet the deadline.

In her letter to the court, Wilson stated that she spoke with her

attorney several days after sentencing and that he told her he did not

think an appeal would do her any good. Since then, she said she had

been told by someone else that she could have an appeal if she wanted

one. Giving Wilson the benefit of the doubt and treating her notice of

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appeal as timely under Houston, we find that the district court did not

abuse its discretion in denying her an extension of time to file for

excusable neglect. Therefore, the notice of appeal was untimely.*

We dismiss the appeal for lack of jurisdiction. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

DISMISSED

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*Wilson's attorney has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), raising one issue. Wilson has filed a pro

se supplemental brief contesting the amount of loss although she stipulated to the amount of loss in her plea agreement and raised no objection

to the loss calculation at sentencing. She also claims that her attorney

was ineffective in failing to appeal, that she had a minimal role in the

offense, and that mitigating factors dictated a shorter sentence.

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