United States v. Stewart

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6463
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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: January 28, 2010 Decided: February 16, 2010
Before TRAXLER, Chief Judge, and MICHAEL and GREGORY, Circuit
Judges.
Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 seeks to appeal the district
court’s orders (1) denying his Fed. R. Civ. P. 59(e) motion to
alter or amend the district court’s previous 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 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, 759 F.2d 351, 353
(4th Cir. 1985). This court reviews a district court’s
excusable neglect determination for an abuse of discretion.
United States v. Breit, 754 F.2d 526, 529 (4th Cir. 1985).
The district court entered judgments on March 6, 2007,
and March 13, 2007. Stewart filed his notices of appeal at the
earliest on March 23, 2007, and April 6, 2007, respectively--
within the thirty-day period after expiration of the ten-day
appeal period. We remanded the case three times to the district
court for the limited purpose of determining whether Stewart had
shown excusable neglect or good cause to warrant an extension of
time to file a notice of appeal. In its last order, the
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district court, after explicitly considering Stewart’s proffered
reasons for the delay as directed by this court, determined that
an extension of the appeal period was not warranted with respect
to either appealed order. We conclude that the district court
did not abuse its discretion in making this determination. See
Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395
(1993) (providing standard for excusable neglect determination).
Because the district court declined to extend the
appeal periods, Stewart’s notices of appeal were not timely
filed. Accordingly, we grant Stewart’s motion for extension of
time to file a response to the district court’s order and
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
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