United States of America v. Randy Kendrell Simpson, a/k/a Cheese

UNPUBLISHED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: April 1, 2010 Decided: April 16, 2010
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Remanded by unpublished per curiam opinion.
G. Godwin Oyewole, Washington, D.C., 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Randy Kendrell Simpson seeks to appeal the district
court’s order revoking supervised release and imposing a
forty-two month prison term. 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).* 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
Although the time limitations imposed by Rule 4(b) are
not jurisdictional,
, 759 F.2d 351, 353 (4th Cir. 1985).
United States v. Urutyan, 564 F.3d 679, 685
(4th Cir. 2009), they “must be enforced by th[e] court when
properly invoked by the government.” United States v. Mitchell
The district court entered its judgment on October 8,
2009. Simpson filed his notice of appeal on November 19, 2009,
after the ten-day period expired but within the thirty-day
,
518 F.3d 740, 744 (10th Cir. 2008). The Government has moved to
dismiss Simpson’s appeal as untimely filed.
* On December 1, 2009, amendments to the Federal Rules of
Appellate Procedure took effect altering certain time periods
and the calculation of specific time periods. The events
relevant to this appeal all occurred prior to that date. We
therefore apply the rules as they existed before December 1,
2009.

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excusable neglect period. Because the notice of appeal was
filed within the excusable neglect period, we defer action on
the Government’s motion to dismiss and remand the case to the
district court for the court to determine whether Simpson has
shown excusable neglect or 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

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