US v. Michael Thompson, No. 09-6092 (4th Cir. 2009)
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The court issued a subsequent related opinion or order on December 29, 2009.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6092 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL J. THOMPSON, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:05-cr-00480-TSE-1) Submitted: July 8, 2009 Before NIEMEYER and Senior Circuit Judge. MICHAEL, Decided: Circuit Judges, August 14, 2009 and HAMILTON, Remanded by unpublished per curiam opinion. Michael J. Thompson, Appellant Pro Se. Christina Lundberg Medzius, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael court s order J. Thompson granting 35(b) motion. the seeks to appeal Government s the Fed. R. district Crim. P. 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); United see States v. Little, 392 F.3d 671, 680-81 (4th Cir. 2004) (applying ten-day appeal period to appeal of a Rule 35 order). 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 government. (10th Cir. th[e] United 2008). court States The when v. properly Mitchell, Government invoked 518 has F.3d moved by the 740, 744 to dismiss Thompson s appeal as untimely. The district December 8, 2008. court Thompson entered asserts that its he notice of the order until January 5, 2009. order did not on receive He filed his notice of appeal at the earliest on January 6, 2009, after the ten-day period period. expired but within the thirty-day excusable neglect Fed. R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). Because the notice of appeal was filed within the excusable neglect period, we remand the case to the district court for the court to determine whether Thompson has shown excusable neglect or 2 good cause warranting an extension of the ten-day appeal period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED 3
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