United States Court of Appeals

for the Fifth Circuit

____________

No. 23-60068

____________

United States of America, 

Plaintiff—Appellee,

versus

Antonio Wiley, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 3:22-CR-33-1

______________________________

Before Jones, Haynes, and Douglas, Circuit Judges.

Per Curiam:

*

Antonio Wiley pled guilty to a drug offense and failed to file a timely 

notice of appeal. When Wiley asked the district court for permission to file a 

late notice of appeal, the district court denied his request. Wiley now appeals.

Finding no error or abuse of discretion, we AFFIRM.

_____________________

* Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 2, 2024

Lyle W. Cayce

Clerk

Case: 23-60068 Document: 00517054714 Page: 1 Date Filed: 02/02/2024
No. 23-60068

2

I. Background

Wiley pled guilty to one count of abetting the distribution of methamphetamine in excess of fifty grams. The district court advised Wiley of his 

right to appeal the sentence the court would later impose. The district court 

eventually sentenced Wiley to seventy months of imprisonment, followed by 

three years of supervised release. The district court again advised Wiley of 

his right to appeal his sentence. The district court entered a judgment on 

December 15, 2022. 

Wiley had until December 29 to appeal his sentence by filing a notice 

of appeal. FED. R. APP. P. 4(b)(1)(A). But neither he nor his trial counsel, 

Whitman Mounger,1filed a notice of appeal by that date.

Instead, on January 22, 2023, twenty days after the filing deadline,

Wiley filed a notice of appeal and a motion for an extension to file a notice of 

appeal. That notice and motion were filed by Susan Clouthier, his newly retained counsel. 

The district court denied Wiley’s motion without prejudice because 

Wiley’s reason for the delay weighed against a finding of excusable neglect. 

In so doing, the court found that Wiley failed to explain why Mounger, who 

was Wiley’s counsel before and at the time the appeal deadline expired, could 

not have filed a timely notice of appeal. 

Wiley then renewed his motion for an extension of time, making the 

same arguments he raised in the previous motion. The court held an evidentiary hearing on Wiley’s renewed motion. After hearing argument from 

Wiley’s new counsel, along with testimony from Wiley, Wiley’s mother, and 

_____________________

1 Mounger did not move for leave to withdraw as Wiley’s counsel until January 24, 

2023. The magistrate judge granted Mounger’s motion on January 31, 2023. 

Case: 23-60068 Document: 00517054714 Page: 2 Date Filed: 02/02/2024
No. 23-60068

3

Mounger, the district court denied Wiley’s renewed motion from the bench. 

Once again, the district court found that all factors, except Wiley’s reason for 

delay, weighed in favor of granting his motion. But because Wiley failed to 

provide an adequate explanation for failing to file a timely notice of appeal, 

the court declined to find excusable neglect and denied the renewed motion.

II. Discussion

A notice of appeal in a criminal case must be filed within fourteen days 

of the entry of the judgment or order being appealed. FED. R. APP.

P. 4(b)(1)(A)(i). But Rule 4 allows the district court to permit a party to file 

a late notice of appeal “[u]pon a finding of excusable neglect or good cause.” 

FED. R. APP. P. 4(b)(4). Should the district court find excusable neglect or 

good cause, it may “extend the time to file a notice of appeal for a period not 

to exceed 30 days from the expiration of the” fourteen days following the 

entry of the judgment or order being appealed. Id.

This court “review[s] the district court’s denial of [a] motion to file a 

late notice of appeal for abuse of discretion.” United States v. Ramos Juarez, 

960 F.3d 709, 711 (5th Cir. 2020).

A.

Wiley first argues that because his failure to file a timely notice of 

appeal was due to excusable neglect, the district court abused its discretion 

in denying his request to file a late notice. In determining whether a party’s

failure was caused by excusable neglect, a court should consider: (1) “the 

danger of prejudice to” the appellee; (2) “the length of the delay and its 

potential impact on judicial proceedings”; (3) “the reason for the delay, 

including whether it was within the reasonable control of the movant”; and 

(4) “whether the movant acted in good faith.” United States v. Clark, 51 F.3d 

42, 44 (5th Cir. 1995) (quoting Pioneer Inv. Services Co. v. Brunswick Associates 

Case: 23-60068 Document: 00517054714 Page: 3 Date Filed: 02/02/2024
No. 23-60068

4

Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993)) (quotations 

omitted).

The district court found that the first, second, and fourth factors 

weighed in favor of granting Wiley’s request. But the third factor did not; 

Wiley had not supplied an adequate reason for not filing a timely notice of 

appeal. Because Wiley failed to satisfy this factor, the district court declined 

to find excusable neglect.

Wiley still offers no reasonable explanation for missing the deadline. 

Wiley knew he had a right to appeal on the date the district court entered 

judgment. Mounger remained his counsel during the fourteen days after the 

district court entered judgment. Yet Wiley failed to ask Mounger to file a 

notice of appeal, even though Mounger would have done so if Wiley had 

simply asked him. In fact, Wiley did not even attempt to contact Mounger 

until January 10, twelve days after the deadline to file a timely notice of appeal 

had passed. In short, Wiley could have, but did not file a timely notice of 

appeal.

Wiley nevertheless contends his medical issues and the holiday season 

made it difficult for him to retain appellate counsel. But that argument 

ignores the fact that Mounger remained Wiley’s counsel during the crucial 

period following entry of judgment, and Mounger would have filed the notice 

of appeal for Wiley, regardless whether he later worked on the appeal. In 

fact, Mounger testified that although he typically does not do appeals, if 

Wiley had expressed an interest in filing an appeal, he would have sought 

appellate counsel. Moreover, Mounger testified he would have filed the 

Case: 23-60068 Document: 00517054714 Page: 4 Date Filed: 02/02/2024
No. 23-60068

5

notice of appeal before referring Wiley to appellate counsel. Wiley’s first 

argument is, therefore, unpersuasive.

2

Wiley’s second argument fares no better. Wiley implies he failed to 

file a timely appeal because Mounger had told him that “there was no need 

to appeal, as [Wiley] had no grounds to appeal.” This argument 

misrepresents the testimony offered during the evidentiary hearing. To be 

sure, Wiley’s mother testified that Mounger said “there was no need to 

appeal.” But Wiley testified that it was Mounger’s wife who told him he 

lacked grounds for an appeal, and that Wiley never discussed filing an appeal 

with Mounger.

3

 Wiley also testified that he understood Mounger’s wife was 

not his lawyer.

Second, whatever Mounger’s wife might have told Wiley about his 

odds of success on appeal was irrelevant to filing a timely appeal. Indeed, 

Wiley’s conversation with Mounger’s wife took place thirteen days after the 

deadline had passed. Mounger’s wife’s comments are of no moment.

Finally, Wiley argues the district court abused its discretion in denying 

his renewed motion because the government did not oppose it. But “a court 

is not required to grant every unopposed motion.” Edward H. Bohlin Co., 

Inc. v. Banning Co., Inc., 6 F.3d 350, 356 (5th Cir. 1993). Although the 

_____________________

2 Wiley argues this court’s decisions in Brewen v. United States, 375 F.2d 285 (5th 

Cir. 1967), and Bunn v. United States, 369 F.2d 809 (5th Cir. 1966) (per curiam), support 

his argument that the district court should have granted his request to file a late notice of 

appeal. In Brewen, we reversed a district court’s denial of an appellant’s request to file an 

untimely appeal because the district court improperly assumed the appellant had retained 

counsel capable of filing an appeal. See 375 F.2d at 288–89. Similarly, in Bunn, we held 

“the filing of notice of appeal was extended by reason of [the defendant’s] having no 

counsel available at the time the notice of appeal was required to be filed in the district 

court.” 369 F.2d at 810. These cases are inapplicable, however, because Wiley did not 

lack counsel capable of filing a timely notice of appeal. 

3 Mounger corroborated Wiley’s testimony.

Case: 23-60068 Document: 00517054714 Page: 5 Date Filed: 02/02/2024
No. 23-60068

6

government took no position on Wiley’s renewed motion, the government’s 

lawyer called Mounger as a witness during the evidentiary hearing, elicited 

testimony unfavorable to granting Wiley’s renewed motion, and made 

arguments against granting the renewed motion. Thus, the government’s 

position on the renewed motion—or lack thereof—does not demonstrate the 

district court abused its discretion in denying the motion.

Because Wiley failed to offer an adequate explanation for his failure to 

comply with Rule 4, the district court did not abuse its discretion in finding 

an absence of excusable neglect.

B.

Wiley alternatively contends that the court erred by failing to consider 

whether “good cause” justified his failure to file a timely appeal separately 

from whether excusable neglect did. Rule 4(b)(4) provides, “[u]pon a 

finding of excusable neglect or good cause, the district court may—before or 

after the time has expired, with or without motion and notice—extend the 

time to file a notice of appeal . . . .” FED. R. APP. P. 4(b)(1) (emphasis 

added). Based on Rule 4’s text, Wiley contends “excusable neglect” and 

“good cause” are separate inquires. This argument, raised for the first time 

on appeal, is forfeited for failure to assert it to the district court not once, not 

twice, but three times.4

Moreover, Wiley does not explain how his renewed motion would 

have succeeded under a “good cause” standard, even if it failed to cross an

“excusable neglect” threshold. Wiley asserts the “good cause” standard is 

more lenient than the “excusable neglect” standard, but in patent 

_____________________

4 Specifically, Wiley failed to make this argument in his initial motion, his renewed 

motion, and during the evidentiary hearing, at which the district court entertained 

argument from Wiley’s new counsel.

Case: 23-60068 Document: 00517054714 Page: 6 Date Filed: 02/02/2024
No. 23-60068

7

contradiction, he contends the factors used to assess “good cause” are the 

same as those underlying “excusable neglect.” Attempting to separate

“good cause” from “excusable neglect” does not advance Wiley’s position.

C.

Finally, Wiley argues the district court abused its discretion by 

denying his renewed motion for a reason not permitted under the law. He 

quotes the evidentiary hearing, during which the district court stated:

[I]f this Court allowed a defendant who missed a deadline to 

come forward with the evidence that has been forwarded here, 

presented in this courtroom today and on these papers an 

extension, everyone would request one. And that is not what 

the Court is going to allow. You have got to show excusable 

neglect. And to me, the important factor about the reason for 

the delay, it has not been established here to the Court’s

satisfaction.

Based on this statement, Wiley claims that the district court denied his 

request to file a late notice of appeal to deter future litigants from not 

complying with Rule 4. He argues that in this respect, the district court 

abused its discretion because neither Rule 4 nor Clark includes “deterrence” 

as a factor a court may consider when deciding a motion to file a late notice 

of appeal.

Wiley misinterprets the district court’s statement. In fact, the district 

court was merely saying what Rule 4 commands: a district court may not 

grant a party permission to file a late notice of an appeal simply because he 

requests it and offers reasons in support of granting his request. Rule 4 

demands more. That means the district court must find excusable neglect or 

good cause to grant a party’s request to file a late notice of appeal. FED. R.

APP. P. 4(b)(4). In simply stating that Wiley’s arguments did not fulfill 

Case: 23-60068 Document: 00517054714 Page: 7 Date Filed: 02/02/2024
No. 23-60068

8

Rule 4 and basing its decision on Rule 4’s requirements, the district court did 

not abuse its discretion.

The district court’s judgment is AFFIRMED.

Case: 23-60068 Document: 00517054714 Page: 8 Date Filed: 02/02/2024