UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4303

TAMMY WILLIAMS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4305

RODNEY H. WILLIAMS,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Charleston.

Patrick Michael Duffy, District Judge.

(CR-97-583)

Submitted: December 8, 1998

Decided: January 19, 1999

Before MURNAGHAN, ERVIN, and MICHAEL, Circuit Judges.

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No. 98-4303 affirmed and No. 98-4305 remanded by unpublished per

curiam opinion.

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COUNSEL

Ann Briks Walsh, Assistant Federal Public Defender, Charleston,

South Carolina; David P. McCann, Charleston, South Carolina, for

Appellants. J. Rene Josey, United States Attorney, Scott N. Schools,

Assistant United States Attorney, Charleston, South Carolina, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In these consolidated appeals, Rodney and Tammy Williams, husband and wife, appeal their sentences. The Williamses pled guilty to

one count of bank robbery by force or violence, 18 U.S.C. § 2113(a),

(d) (1994), and one count of using and carrying a handgun during and

in relation to a crime of violence, 18 U.S.C.A.§ 924(c) (West 1994

& Supp. 1998). Tammy Williams ("Ms. Williams") contends the

court erred because it believed it did not have the authority to grant

a downward departure from the applicable Sentencing Guidelines

range. Finding no reversible error, we affirm. Rodney Williams noted

his appeal outside the ten-day appeal period but within the thirty-day

period during which an extension could be granted upon a showing

of excusable neglect. See Fed. R. App. P. 4(b). Accordingly, we

remand his appeal to the district court with instructions to make factual findings concerning whether there was excusable neglect that

warrants an extension of the ten-day appeal period.

The Williamses pled guilty to robbing the NationsBank Distribution Center of approximately $3.2 million. Ms. Williams's applicable

Sentencing Guidelines range for the robbery conviction was 70 to 87

months' imprisonment. In addition, she was to receive a sixty-month

consecutive sentence for the firearm conviction.

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Based on a life of sexual and emotional abuse and neglect that

allegedly made her submissive and distressed, she moved for downward departure under U.S. Sentencing Guidelines Manual §§ 5K2.0,

5K2.12, 5K2.16 (1997) and USSG Ch. 1, Pt. A, 4(d). Ms. Williams

presented testimony from family members and a forensic psychologist. As for departure under § 5K2.0, the court found that it was a

"close call," but denied the motion.

After sentencing, Ms. Williams moved the court for clarification of

its grounds for denying the motion for downward departure and

reconsideration of the denial. At the hearing on the motion, the Government conceded that Ms. Williams's history of abuse may be a

basis for departure, albeit a discouraged one. See United States v.

Withers, 100 F.3d 1142, 1147-48 (4th Cir. 1996), cert. denied, ___

U.S. ___, 65 U.S.L.W. 3631 (U.S. Mar. 17, 1997) (No. 96-7884). The

court agreed, stating "I believe that I, as a sentencing Judge, do have

the authority to review and consider the defendant's history of abuse

to determine whether or not to use it or allow it to be used as a basis

for a downward departure motion." (J.A. 296). The court reviewed the

elements necessary for downward departure, including the need for

evidence that the mental condition bore a causal connection to the

criminal conduct. The court subsequently stated that"the Court finds

that the facts of this case do not fall outside of the heartland of cases

under 5K2.0." (J.A. 299-300). In conclusion the court stated that "I

think that the guidelines and the case law dictate, given the facts of

this case, that I should rule in the exercise of my discretion as I have."

(J.A. 300).

On appeal, Ms. Williams challenges the court's decision to deny

downward departure under § 5K2.0.* The denial of a motion for

downward departure is reviewable on appeal if the district court misperceived its power to depart. On the other hand, a court's discretionary denial of such a motion is not reviewable. See United States v.

Davis, 98 F.3d 141, 145 (4th Cir. 1996), cert. denied, ___ U.S. ___,

65 U.S.L.W. 3630 (U.S. Mar. 17, 1997) (No. 96-7755). Ms. Williams

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*Because Ms. Williams does not challenge the court's denial for

downward departure sought on other grounds, we consider those claims

abandoned. See 11126 Baltimore Blvd., Inc. v. Prince George's County,

58 F.3d 988, 993 n.7 (4th Cir. 1995).

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contends that the court believed it did not have the authority to grant

the downward departure. However, as the transcript reveals, the court

clearly understood it had the discretion to depart from the Sentencing

Guidelines for the reasons offered by Ms. Williams. It merely found

a lack of evidentiary support.

Because the court knew that it had the legal authority to depart, but

used its discretion to deny the motion for downward departure, the

court's denial is not reviewable on appeal.

With regard to Rodney Williams's ("Mr. Williams") appeal, the

Government correctly points out that Mr. Williams's counsel filed a

late notice of appeal. In criminal cases, a defendant must file his

notice of appeal within ten days of the entry of judgment. With or

without a motion, the district court may grant an extension of time to

file of up to thirty days upon a showing of excusable neglect. See

Rule 4(b). When an appellant files a notice of appeal after the ten-day

period but within the thirty-day extension period, unless excusable

neglect is clear on the record, the district court must make factual

findings concerning whether there was excusable neglect warranting

extension of the appeal period. See United States v. Reyes, 759 F.2d

351, 353 (4th Cir. 1985).

In Mr. Williams's case, a judgment was entered on April 7, 1998.

The first day of the ten-day appeal period was April 8, 1998. See Fed.

R. App. P. 26(a) (computation of time). Mr. Williams therefore had

until Friday, April 17, 1998, in which to file a timely notice of appeal.

The notice of appeal was not filed until Monday, April 20, 1998.

Thus, his notice of appeal was untimely by one business day. While

this filing was after the ten-day limit, it was within the thirty-day

extension period applicable upon a showing of excusable neglect.

Based on the foregoing, we affirm Ms. Williams's sentence in No.

98-4303. We remand Mr. Williams's appeal in No. 98-4305 to the

district court with instructions to make factual findings concerning

whether there was excusable neglect that warrants an extension of the

ten-day appeal period. We dispense with oral argument because the

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facts and legal conclusions are adequately presented in the materials

before the court and argument would not aid the decisional process.

No. 98-4303 - AFFIRMED

No. 98-4305 - REMANDED

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