UNPUBLISHED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: December 10, 2010 Decided: January 6, 2011

Before MOTZ, DUNCAN, and AGEE, Circuit Judges. 

Remanded by unpublished per curiam opinion.

G. Godwin Oyewole, McLean, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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 judgment revoking his supervised release and imposing a 

forty-two month prison term. At the time Simpson filed his 

notice of appeal, the applicable rule provided that, in criminal 

cases, the defendant was accorded ten days after the entry of 

judgment within which to file his notice of appeal. Fed. R. 

App. P. 4(b)(1)(A)(i).*

The district court entered judgment on 

October 8, 2009. The ten-day appeal period expired on October 

 With or without a motion, upon a showing 

of excusable neglect or good cause, the district court possessed 

authority to 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). 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 

[G]overnment.” United States v. Mitchell, 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 both appeal periods and 

the methods for calculating dates. The amendments are not 

implicated in this appeal, and we therefore apply the rules as 

they existed before December 1, 2009.
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23, 2009. See Fed. R. App. P. 26(a). The thirty-day excusable 

neglect period expired on November 23, 2009. Simpson filed his 

notice of appeal on November 19, 2009. We remanded the case to 

the district court for that court to determine whether Simpson 

could demonstrate excusable neglect or good cause warranting an 

extension of the appeal period. United States v. Simpson, 

374 F. App’x 462 (4th Cir. 2010) (No. 09-5126). On remand, 

without ordering or obtaining a response from Simpson, the 

district court determined that he failed to demonstrate 

excusable neglect or good cause.

A district court’s finding regarding excusable neglect 

justifying an extension of the appeal period under Rule 4(b) is 

reviewed for abuse of discretion. See United States v. Breit, 

754 F.2d 526, 528-29 (4th Cir. 1985). A determination of 

excusable neglect is to be based on several factors, including 

“the danger of prejudice [to the opposing side], the length of 

the delay and its potential impact on judicial proceedings, the 

reason for the delay, including whether it was within the 

reasonable control of the movant, and whether the movant acted 

in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. 

Ltd. P’ship, 507 U.S. 380, 395 (1993). The most important of 

these factors is the untimely party’s reason for delay. 

Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 534

(4th Cir. 1996). A district court abuses its discretion by 
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failing to take into account judicially-recognized factors 

constraining its exercise. James v. Jacobson, 6 F.3d 233, 239 

(4th Cir. 1993).

Because the district court never provided Simpson with

an opportunity to account for the untimely filing of the notice 

of appeal, its excusable neglect determination was made without 

it having first considered any reason Simpson may have had for 

failing to file the notice on time. Further, after review of 

the record, we find no indication that the district court 

considered any other factors relevant to its excusable neglect 

determination. Because the district court failed to take 

account of judicially-recognized factors in making its excusable 

neglect determination, we again remand the case to the district 

court for the court to determine whether excusable neglect or 

good cause warrant an extension of the ten-day appeal period. 

The district court is instructed on remand to provide Simpson 

with an opportunity to account for the untimely notice of appeal 

and address any factors relevant to its excusable neglect 

determination. The record, as supplemented, will then be 

returned to this court for further consideration.

REMANDED