US v. Randy Simpson

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UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [998245894-2], granting Supplemental Motion to dismiss appeal [998731843-2]. Originating case number: 2:96-cr-00011-NCT-1. Copies to all parties and the district court/agency. [998816100].. [09-5126, 11-5029]

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Appeal: 09-5126 Document: 49 Date Filed: 03/22/2012 Page: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5126 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RANDY KENDRELL SIMPSON, a/k/a Cheese,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. No. 11-5029 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RANDY KENDRELL SIMPSON, a/k/a Cheese, Defendant - Appellant. Appeals 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: March 7, 2012 Decided: Before MOTZ, DUNCAN, and AGEE, Circuit Judges. March 22, 2012 Appeal: 09-5126 Document: 49 Date Filed: 03/22/2012 Page: 2 of 4 No. 09-5126 dismissed; No. 11-5029 affirmed by unpublished per curiam opinion. Lisa S. Costner, LISA S. COSTNER, PA, Winston-Salem, North Carolina, 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 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 09-5126 Document: 49 Date Filed: 03/22/2012 Page: 3 of 4 PER CURIAM: In these consolidated appeals, Randy Kendrell Simpson seeks to appeal the district court’s judgment revoking his supervised release and imposing a forty-two-month prison term and a forty-eight-month term of supervised release (No. 09-5126) and appeals the court’s subsequent order denying an extension of time to appeal the judgment of revocation (No. 11-5029). The Government has moved to dismiss Simpson’s appeal of the judgment of revocation as untimely. In criminal cases, the defendant must file a notice of appeal within ten days after the entry of judgment. Fed. R. App. P. 4(b)(1)(A)(i) (applicable to notices of appeal filed before Dec. 1, 2009). With or without a motion, upon a showing of 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 the judgment of revocation on October 8, 2009. November 19, 2009, Simpson filed his notice of appeal on outside of the ten-day appeal within the thirty-day excusable neglect period. remanded this case to the district court for period but We previously that court to determine whether Simpson could show good cause or excusable neglect warranting an extension 3 of the appeal period. On Appeal: 09-5126 Document: 49 Date Filed: 03/22/2012 Page: 4 of 4 remand, the district court concluded that an extension of the appeal period was not warranted. record, we find no abuse After a careful review of the of discretion in that decision. See United States v. Breit, 754 F.2d 526, 529 (4th Cir. 1985) (stating the standard of review). Accordingly, in No. 11-5029, we affirm the district court’s order. Because appeal from supervised period, Simpson the district release we failed grant or the to to file court’s obtain a timely judgment an extension Government’s motion notice revoking of to the of his appeal dismiss and supplemental motion to dismiss and dismiss the appeal in No. 09-5126. See United States v. Mitchell, 518 F.3d 740, 744 (10th Cir. 2008) (stating that the time limit in Rule 4(b) “must be enforced by th[e] court when properly invoked by the government”). We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. No. 09-5126 DISMISSED; No. 11-5029 AFFIRMED 4

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