UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6463
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY WILLIAM STEWART,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (3:01-cr-00011-2)
Submitted: September 29, 2008 Decided: February 20, 2009
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Terry William Stewart, Appellant Pro Se. Anne Magee Tompkins,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry William Stewart seeks to appeal the district
court’s orders (1) denying his Fed. R. Civ. P. 59(e) motion to
alter or amend the district court’s previous order denying his
Fed. R. Civ. P. 60(b) motion for reconsideration of his criminal
judgment; and (2) denying his motion for adjustment of
restitution payments pursuant to 18 U.S.C. § 3572 (2006). In
criminal cases, the defendant must file the notice of appeal
within ten days after the entry of judgment. Fed. R. App. P.
4(b)(1)(A). With or without a motion, upon a showing of
excusable neglect or good cause, the district court may grant an
extension of up to thirty days to file a notice of appeal. Fed.
R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353
(4th Cir. 1985).
The district court entered judgments on March 6, 2007,
and March 13, 2007. Stewart filed his notices of appeal at the
earliest on March 23, 2007, and April 6, 2007, respectively--
within the thirty-day period after expiration of the ten-day
appeal period. We remanded the case twice to the district court
for the limited purpose of determining whether Stewart had shown
excusable neglect or good cause to warrant an extension of time
to file a notice of appeal.
A determination of excusable neglect is based on
several factors, including “the danger of prejudice [to the
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opposing side], the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Pioneer Inv. Servs.
Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993). The most
important of these factors is the untimely party’s reason for
delay. Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530,
534, 539 & n.4 (4th Cir. 1996) (“[F]ailure to learn of the entry
of judgment should ordinarily excuse a party from the
requirement that the notice be timely filed.”) (internal
quotation omitted).
On remand for the second time, the district court
found that the length of the delay was prejudicial to the
Government and that Stewart’s delay and frivolous pursuit of
these appeals impacts judicial proceedings. The district court
noted it had previously found that Stewart had failed to act in
good faith and that it was implicit in its previous order that
it had considered the relevant excusable neglect factors, adding
that the reason for Stewart’s delay was nothing more than
harassment of the judicial system. The court, however, did not
discuss the facts relating to the delayed filing of the appeal,
including Stewart’s proffered reasons for the delay. In
particular, the court did not discuss Stewart’s allegations that
he never received the court’s order denying his Rule 59(e)
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motion and that he did not timely receive the court’s order
denying his § 3572 motion. Because it is not apparent that the
district court gave sufficient consideration to the judicially
recognized factors in determining whether excusable neglect
exists to excuse the untimely filing of the notices of appeal,
we remand to the district court again for further consideration.
We direct the district court to explicitly address, and accept
or reject, in the context of considering excusable neglect
factors, the reasons proffered by Stewart for his delay in
filing the notices of appeal. The record as supplemented with
the district court’s findings on remand will then be returned to
this court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
REMANDED
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