United States of America, Plaintiff-appellee, v. Luther Bartrug, Defendant-appellant, 46 F.3d 1127 (4th Cir. 1995)

Luther R. Bartrug seeks to appeal the district court's order revoking his probation and supervised release and imposing an additional term of imprisonment. The district court entered its order on September 13, 1993. On October 12, 1993, Bartrug noted his appeal. The district court granted no extension of time to appeal, nor did Bartrug request an extension or make a showing of excusable neglect to explain why he did not file his notice of appeal until October 12, 1993.

In criminal cases, a defendant must file his notice of appeal within ten days of the entry of judgment. Fed. R. App. P. 4(b). With or without a motion, the district court may grant an extension of this time of up to thirty days upon a showing of excusable neglect. Fed. R. App. P. 4(b); see United States v. Reyes, 759 F.2d 351, 353 (4th Cir.), cert. denied, 474 U.S. 857 (1985). If the defendant files his notice of appeal outside the ten-day appeal period, but within the thirty-day extension period, the district court must make factual findings concerning whether there was excusable neglect which warrants an extension of the appeal period. Id.

Although Bartrug noted his appeal outside the ten-day appeal period, it was within the thirty-day extension period applicable upon a showing of excusable neglect. Therefore, we remand this case to the district court to allow Bartrug thirty days within which to request, upon a showing of excusable neglect, an extension of the appeal period. 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