United States v. Thompson ( 2009 )

UNPUBLISHED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 MICHAEL, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 J. Thompson seeks to appeal the district
court’s order granting the Government’s Fed. R. Crim. P.
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 properly invoked by the
government.” United States v. Mitchell, 518 F.3d 740, 744
(10th Cir. 2008). The Government has moved to dismiss
Thompson’s appeal as untimely.
The district court entered its order on
December 8, 2008. Thompson asserts that he did not 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 expired but within the thirty-day excusable neglect
period. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759
F.2d 351, 353 (4th Cir. 1985). Because the notice of appeal was
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 good cause warranting an
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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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