United States v. Kelly Clay, (Two Cases)

In this consolidated appeal, Kelly Clay argues that the district court erred in finding no excusable neglect for his failure to file timely notice of appeal. He also appeals his conviction and sentence for conspiracy to distribute cocaine. We find that we have, jurisdiction of the appeals; we affirm in part but remand for resentencing.

From 1986 to 1988, the Drug Enforcement Agency investigated Clay and others for cocaine trafficking in Southeastern Idaho. After a series of undercover meetings and cocaine purchases, agents arranged for an informant to buy several kilograms of cocaine from Clay on March 24, 1987.

At the sale, Clay delivered approximately one kilogram of cocaine in exchange for $50,000. He was arrested and indicted for distribution of cocaine. He pleaded guilty and was sentenced to ten years in prison and a $10,000 fine.

On January 15, 1988, Clay was indicted for three more counts of distribution of cocaine and for conspiracy to distribute cocaine continuing from 1976 up to the date of filing. The government repeated the charges against Clay in a superceding indictment on February 11, 1988. On October 24, 1988, Clay pleaded guilty to involvement in the conspiracy…