United States v. Stewart ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6463
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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: July 23, 2007 Decided: August 17, 2007
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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 appeals the district court’s orders
(1) denying his Fed. R. Civ. P. 59(e) motion to alter or amend the
court’s order denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of his criminal judgment; and (2) denying his
motion for adjustment of restitution payments pursuant to 18 U.S.C.
§ 3572 (2000). In criminal cases, the defendant must file a notice
of appeal within ten days of the entry of judgment.1 Fed. R. App.
P. 4(b)(1)(A). With or without a motion, the district court may
grant an extension of time of up to thirty days upon a showing of
excusable neglect or good cause. Fed. R. App. P. 4(b)(4); United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). These time
periods are mandatory and jurisdictional. United States v. Raynor,
939 F.2d 191, 197 (4th Cir. 1991).
With respect to Stewart’s appeal of his Rule 59(e)
motion, it was incumbent upon Stewart to file his notice of appeal
within ten days of the March 6, 2007 order, i.e., by March 20,
2007. See Fed. R. App. P. 26(a)(2) (providing that intermediate
Saturdays, Sundays, and legal holidays are excluded when period is
less than eleven days). The district court could have extended the
time within the next thirty days, or until April 19. Fed. R. App.
1
Although Stewart filed his Rule 59 motion and underlying
Rule 60 motion pursuant to the Federal Rules of Civil Procedure,
the civil rules do not apply to the criminal judgment. The motions
were clearly criminal in nature and therefore the ten-day appeal
period is applicable.
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P. 4(b)(4). By Stewart’s own account, the notice of appeal was
filed at the earliest on March 23, 2007.2 In his notice of appeal,
Stewart claimed that he did not receive a copy of the denial of his
motion; rather, he learned of the denial from his wife who observed
the denial on the case docket on the internet.
With respect to Stewart’s appeal of the court’s March 13,
2007, order denying his pro se motion under § 3572 for adjustment
of restitution payments, it was incumbent upon Stewart to file his
notice of appeal by March 27, 2007. Stewart filed his notice of
appeal at the earliest on April 6, 2007, within the thirty-day
period after expiration of the ten-day appeal period. In his
notice of appeal, Stewart claimed he did not receive his copy of
the order until March 23, 2007.
Because Stewart filed both notices of appeal after the
ten-day appeal period but within the excusable neglect period, we
remand the case to the district court for the court to determine
whether Stewart demonstrated excusable neglect or good cause
warranting an extension of the ten-day appeal period. 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
2
Because Stewart is incarcerated, the filing date is
determined pursuant to Houston v. Lack, 487 U.S. 266, 276 (1988).
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the materials before the court and argument would not aid the
decisional process.
REMANDED
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