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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.

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