UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDY KENDRELL SIMPSON, a/k/a Cheese,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton
Tilley, Jr., Senior District Judge. (2:96-cr-00011-NCT-1)
Submitted: December 10, 2010 Decided: January 6, 2011
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Remanded by unpublished per curiam opinion.
G. Godwin Oyewole, McLean, Virginia, for Appellant. Michael
Francis Joseph, Angela Hewlett Miller, Assistant United States
Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy Kendrell Simpson seeks to appeal the district
court’s judgment revoking his supervised release and imposing a
forty-two month prison term. At the time Simpson filed his
notice of appeal, the applicable rule provided that, in criminal
cases, the defendant was accorded ten days after the entry of
judgment within which to file his notice of appeal. Fed. R.
App. P. 4(b)(1)(A)(i). * With or without a motion, upon a showing
of excusable neglect or good cause, the district court possessed
authority to 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). Although the time
limitations imposed by Rule 4(b) are not jurisdictional, United
States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009), they “must
be enforced by th[e] court when properly invoked by the
[G]overnment.” United States v. Mitchell, 518 F.3d 740, 744
(10th Cir. 2008). The Government has moved to dismiss Simpson’s
appeal as untimely filed.
The district court entered judgment on
October 8, 2009. The ten-day appeal period expired on October
*
On December 1, 2009, amendments to the Federal Rules of
Appellate Procedure took effect altering both appeal periods and
the methods for calculating dates. The amendments are not
implicated in this appeal, and we therefore apply the rules as
they existed before December 1, 2009.
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23, 2009. See Fed. R. App. P. 26(a). The thirty-day excusable
neglect period expired on November 23, 2009. Simpson filed his
notice of appeal on November 19, 2009. We remanded the case to
the district court for that court to determine whether Simpson
could demonstrate excusable neglect or good cause warranting an
extension of the appeal period. United States v. Simpson,
374 F. App’x 462 (4th Cir. 2010) (No. 09-5126). On remand,
without ordering or obtaining a response from Simpson, the
district court determined that he failed to demonstrate
excusable neglect or good cause.
A district court’s finding regarding excusable neglect
justifying an extension of the appeal period under Rule 4(b) is
reviewed for abuse of discretion. See United States v. Breit,
754 F.2d 526, 528-29 (4th Cir. 1985). A determination of
excusable neglect is to be based on several factors, including
“the danger of prejudice [to the 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.
Ltd. P’ship, 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., Inc., 76 F.3d 530, 534
(4th Cir. 1996). A district court abuses its discretion by
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failing to take into account judicially-recognized factors
constraining its exercise. James v. Jacobson, 6 F.3d 233, 239
(4th Cir. 1993).
Because the district court never provided Simpson with
an opportunity to account for the untimely filing of the notice
of appeal, its excusable neglect determination was made without
it having first considered any reason Simpson may have had for
failing to file the notice on time. Further, after review of
the record, we find no indication that the district court
considered any other factors relevant to its excusable neglect
determination. Because the district court failed to take
account of judicially-recognized factors in making its excusable
neglect determination, we again remand the case to the district
court for the court to determine whether excusable neglect or
good cause warrant an extension of the ten-day appeal period.
The district court is instructed on remand to provide Simpson
with an opportunity to account for the untimely notice of appeal
and address any factors relevant to its excusable neglect
determination. The record, as supplemented, will then be
returned to this court for further consideration.
REMANDED
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