US v. Randy Simpson, No. 09-5126 (4th Cir. 2011)

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This opinion or order relates to an opinion or order originally issued on April 16, 2010.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5126 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RANDY KENDRELL SIMPSON, a/k/a Cheese,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 Remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. App. P. 4(b)(1)(A)(i). * Fed. R. 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 [G]overnment. th[e] court when properly invoked by the 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 October 8, 2009. district court entered judgment on 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. 2 23, 2009. See Fed. R. App. P. 26(a). The thirty-day excusable neglect period expired on November 23, 2009. notice of appeal on November 19, 2009. Simpson filed his 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 374 F. App x the 462 without court (4th ordering district appeal or period. Cir. 2010) obtaining determined a that United (No. v. 09-5126). response he States from failed On Simpson, remand, Simpson, to the 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. 754 F.2d 526, 528-29 (4th Cir. See United States v. Breit, 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). these factors is the untimely The most important of 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 3 failing to take into account constraining its exercise. judicially-recognized factors 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. the record, we find no indication Further, after review of 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 determination. any factors The relevant record, as to its excusable supplemented, will neglect then be returned to this court for further consideration. REMANDED 4

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