US v. Stewart

Filing 920090220

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 In

restitution payments pursuant to 18 U.S.C. § 3572 (2006).

criminal cases, the defendant must file the notice of appeal within ten days after the entry of judgment. 4(b)(1)(A). With or without a motion, Fed. R. App. P. a showing of

upon

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 several determination including of excusable danger neglect of is based [to on the

factors,

"the 2

prejudice

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." Co. v. Brunswick Pioneer Inv. Servs. The most

Assocs., 507 U.S. 380, 395 (1993).

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 that the ordinarily notice be excuse timely a party filed.") from the

requirement

(internal

quotation omitted). On found that remand the for the of second time, was the district court the

length

the

delay

prejudicial

to

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 3 order denying his Rule 59(e)

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 by Stewart excusable for his neglect delay in

factors,

the

reasons

proffered

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

4