IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31082 Conference Calendar

UNITED STATES OF AMERICA,,

Plaintiff-Appellee,

versus

THUAN HUU HUYNH,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 00-CV-514-B USDC No. 98-CR-71-ALL-B -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Thuan Huu Huynh moves this court for a certificate of

appealability (COA) to appeal the district court’s dismissal of

his

motion. The motion for COA is DENIED AS

MOOT because Huynh did not timely file a notice of appeal. The

district court did not abuse its discretion in determining that

Huynh’s untimely filing of his notice of appeal was not due to

excusable neglect. Halicki v. Louisiana Casino Cruises, Inc.,

(5th Cir. 1998), cert. denied,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-31082 -2-

(1999); United States v. Clark,

(5th Cir. 1995).

Without a finding of excusable neglect, Huynh’s notice of appeal

filed on August 28, 2000, is untimely, and this court is without

jurisdiction over the appeal. FED. R. APP. P. 3(a)(1).

Accordingly, the appeal is DISMISSED.