UNPUBLISHED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: November 28, 2007 Decided: December 28, 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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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, a defendant must file his notice

of appeal within ten days of the entry of judgment. Fed. R. App.

P. 4(b)(1). With or without a motion, the district court may grant

an extension of time to file 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, 196 (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.

P. 4(b)(4). By Stewart’s own account, the notice of appeal was
1Because Stewart is incarcerated, the filing date is

determined pursuant to Houston v. Lack, 487 U.S. 266, 276 (1988).

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filed at the earliest on March 23, 2007.1

 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 district 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.

We remanded the case, which includes both orders, to the

district court for that court to determine whether Stewart could

demonstrate excusable neglect or good cause warranting an extension

of the appeal period as to the appealed orders. On remand, the

district court noted in detail the “tortured procedural history due

to the prolific, harassing and frivolous pro se filings” of

Stewart. The district court explained that Stewart’s pro se

motions were denied because his appeal of his amended judgment was

pending in this Court and Stewart, who was represented by counsel,

had been clearly instructed to address the district court only
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through counsel. Finding that Stewart’s filings were frivolous,

made without counsel, and designed to harass the judicial system,

and noting Stewart’s history of prolific pro se filings, the

district court found no good cause or excusable neglect for filing

untimely notices of appeal. 

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. United States v. Breit, 754 F.2d

526, 528-29 (4th Cir. 1985). A determination of excusable neglect

is 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., 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., 76 F.3d 530, 534

(4th Cir. 1996). 

An abuse of discretion manifests “in a failure or

refusal, either express or implicit, actually to exercise

discretion, deciding instead as if by general rule, or even

arbitrarily, as if neither by rule nor discretion.” James v.

Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). A district court may

also abuse its discretion in failing to take into account
2

Even assuming without deciding that the district court was

not vested with jurisdiction over Stewart’s pro se motions because

his direct appeal was pending, this court would still have

jurisdiction over a timely appeal of the district court’s orders

denying the subject motions. 

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judicially recognized factors constraining its exercise or by an

exercise that is flawed by erroneous factual or legal premises.

Id. 

The timely filing of a notice of appeal is jurisdictional

and a necessary prerequisite to reaching the merits of an appeal.2

While all of the district court’s assertions may be proper grounds

to deny Stewart relief on his motions, they do not implicate the

jurisdictional considerations with respect to whether Stewart

established excusable neglect warranting an extension of the appeal

period. In fact, on remand, the court did not consider any factor

pertaining to the untimely notices of appeal, such as the reason

for delay in filing the notice of appeal and the length of the

delay. Because the district court failed to take into account the

judicially recognized factors in determining whether excusable

neglect exists to excuse the untimely filing of the notices of

appeal, we are constrained to remand to the district court again

for further consideration. 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
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. 

REMANDED