US v. Michael Thompson

Filing 920090814

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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

Decided:

August 14, 2009

Before NIEMEYER and Senior Circuit Judge.

MICHAEL,

Circuit

Judges,

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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 the seeks to appeal Fed. the R. district Crim. P.

granting

Government's

35(b) motion.

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); see United 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 th[e] court when v. properly 518 invoked F.3d to by 740, the 744

government." (10th Cir.

United 2008).

States The

Mitchell, has

Government

moved

dismiss

Thompson's appeal as untimely. The district court entered that he its did order not on

December 8, 2008.

Thompson

asserts

receive

notice of the order until January 5, 2009.

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 Because the notice of appeal was

F.2d 351, 353 (4th Cir. 1985).

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