                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2870

U NITED STATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

L ADMARALD C ATES,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Eastern District of Wisconsin.
         No. 2:11-cr-00200-JPS-1—J.P. Stadtmueller, Judge.


     A RGUED F EBRUARY 25, 2013—D ECIDED JUNE 13, 2013




 Before B AUER, P OSNER, and SYKES, Circuit Judges.
  B AUER, Circuit Judge.     Milwaukee police officer
Ladmarald Cates sexually assaulted a woman while
responding to her 911 call. After a three-day trial, a jury
convicted Cates of violating the woman’s civil rights
while acting under color of law in violation of 18 U.S.C.
§ 242. At his first sentencing hearing, Cates reported
problems with his attorney, and the district court
delayed sentencing and appointed new counsel. Two
months after his appointment and five months after the
2                                               No. 12-2870

time for filing post-conviction motions had passed,
Cates’ new attorney requested an extension of time to
file post-conviction motions. The district court denied the
motion and ultimately sentenced Cates to 288 months’
imprisonment. Cates has appealed, challenging only
the district court’s denial of his motion for an extension
of time. Because the district court did not abuse its dis-
cretion, we affirm.


                   I. BACKGROUND
  As the only issue before us is the district court’s
denial of Cates’ motion for an extension of time to file
post-trial motions, our discussion of the events under-
lying Cates’ conviction will be brief. On July 16, 2010,
Iema Lemons had a fight with her neighbor and called
the police. Cates and his partner responded to the call,
and a variety of events left Cates alone with Lemons
in Lemons’ home, where he sexually assaulted her. At
trial, Cates admitted to having sex with Lemons, but
claimed it was consensual. The jury found otherwise,
convicting Cates of one count of willfully depriving
Lemons of her civil rights, in violation of 18 U.S.C. § 242.
The jury found that Cates’ actions included aggravated
sexual assault, but that there was no bodily injury to
Lemons (such a finding would have triggered an en-
hanced maximum sentence under 18 U.S.C. § 242). The
jury also found Cates not guilty of using a firearm
during a crime of violence, 18 U.S.C. § 924(c)(1)(A).
   On January 11, 2012, the day the jury returned
its verdict, the district court set Cates’ sentencing for
No. 12-2870                                                    3

April 11, 2012. At the hearing on April 11, Cates reported
that he wanted to retain new counsel because he was
dissatisfied with the attorney who had represented
him at trial.1 The district court allowed Cates’ trial
counsel to withdraw, stayed the case, and instructed
the probation officer to contact the Federal Defenders
office because Cates said he could not afford an attorney.
  On April 27, the district court entered a nunc pro tunc
order appointing new counsel, Cates’s current attorney,
as of April 23, 2012. On May 31, the district court set
Cates’ sentencing hearing for June 29. Four days later,
the government requested that the sentencing be moved
to July 2 due to a scheduling conflict; the district court
granted the government’s request.
   On June 27, two months after being appointed and a
few days before Cates’ sentencing hearing, Cates’ attorney
filed motions seeking a continuance of the sentencing
hearing, an extension of time to file motions for a judg-
ment of acquittal notwithstanding the verdict and for
a new trial under Federal Rules of Criminal Procedure 29
and 33, and authorization to secure a transcript of the
trial proceedings. The motion for an extension of time
to file post-conviction motions suggested that the dis-
trict court provide the extension based upon a finding



1
  Cates’ trial counsel had begun to experience trouble in both
her health and representation of clients. In February 2012,
we disbarred Cates’ trial counsel from further practice in
this Court for her conduct in an unrelated case. See In re Boyle-
Saxton, 668 F.3d 471 (7th Cir. 2012).
4                                              No. 12-2870

of “excusable neglect” under Rule 45(b)(1). In support of
the motion, Cates’ attorney provided an affidavit in
which he stated that he had “devoted an extended
amount of time to review of the discovery materials”
he had received from Cates’ trial counsel, and met with
Cates, who was incarcerated, and members of Cates’
family. He said that his review of the case led him
to conclude that he needed the trial transcript, without
which he “c[ould not] be certain that issues related to
objections and/or sufficiency of the evidence should not
be raised in post trial motions so as to preserve those
issues on appeal.”
   The district court granted Cates’ motion to postpone
sentencing and request for the trial transcript, but
ordered the government to respond to Cates’ motion for
an extension of time to file post-conviction motions
because the motion for an extension came five months
after the deadline for the filing of motions under Rules 29
and 33. The government opposed the motion for an
extension of time, arguing that Cates had failed to estab-
lish excusable neglect as required by Rule 45(b)(1)(B).
The district court agreed with the government and
denied the motion on July 18, 2012. On July 30, the
district court sentenced Cates to 288 months of impris-
onment and three years of supervised release.


                    II. DISCUSSION
  On appeal, Cates challenges only the district court’s
denial of his motion for an extension of time to file post-
conviction motions. As Cates concedes, the fourteen-
No. 12-2870                                                5

day deadline for filing motions under Rules 29 and 33
following the guilty verdict had long since passed by
the time his new counsel was appointed and sought to
file post-trial motions. Rule 45(b), however, generally
permits a district court to grant an extension if the de-
fendant can demonstrate that excusable neglect caused
the late filing. Fed. R. Crim. P. 45(b)(1)(B) (“When an act
must . . . be done within a specified period, the court . . .
may extend the time . . . after the time expires if the
party failed to act because of excusable neglect.”). Cates
contends that excusable neglect warranted the extension
of the deadline to file post-conviction motions in this
case. We review a district court’s excusable neglect deter-
mination for abuse of discretion. Sherman v. Quinn, 668
F.3d 421, 425 (7th Cir. 2012). “The real question here
is not whether we would have found . . . excusable
neglect but rather whether we should second-guess the
trial judge’s decision that it was.” United States v. Brown,
133 F.3d 993, 996 (7th Cir. 1998) (quoting Varhol v.
National R.R. Passenger Corp., 909 F.2d 1557, 1564 (7th
Cir. 1990)).
  In Pioneer Investment Services Co. v. Brunswick Associates
Limited Partnership, 507 U.S. 380, 395 (1993), the Supreme
Court construed the phrase “excusable neglect” in the
context of Rule 9006(b)(1) of the Federal Rules of Bank-
ruptcy Procedure, and we have held that Pioneer applies
whenever “excusable neglect” appears in the federal
procedural rules. Raymond v. Ameritech Corp., 442 F.3d
600, 606 (7th Cir. 2006) (listing cases); see also United
States v. Munoz, 605 F.3d 359, 369 (6th Cir. 2010) (holding
that Pioneer analysis applies in the context of a late-filed
6                                               No. 12-2870

motion under Federal Rule of Criminal Procedure 33).
Under Pioneer, “[t]he test as to what constitutes excus-
able neglect is an ‘equitable one,’ taking account of ‘all
relevant circumstances surrounding the party’s omis-
sion.’ ” Brown, 133 F.3d at 996 (quoting Pioneer, 507 U.S.
at 395). The factors to be balanced in making this
equitable determination include “the danger of prejudice
[to the non-moving party], the length of the delay and
its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the rea-
sonable control of the movant, and whether the movant
acted in good faith.” Pioneer, 507 U.S. at 395.
  Here, the district court applied the Pioneer factors
and concluded that Cates’ failure to timely file post-
conviction motions was not the result of excusable
neglect, and Cates fails to persuade us that the district
court abused its discretion in reaching this result. The
factor that weighed most heavily in the district court’s
determination was the reason—or lack thereof—for
Cates’ delay in requesting the extension. The district
court acknowledged that Cates perhaps received inade-
quate representation from the time of the verdict until
the appointment of his new attorney, but Cates’ new
attorney then waited two months before requesting the
extension. And despite this lengthy delay, neither the
motion for the extension or its supporting affidavit pro-
vided any explanation aside from Cates’ attorney having
spent “an extended amount of time” reviewing discovery
materials and meeting with Cates and his family. But
neglect due to a busy schedule is generally not excus-
able. Harrington v. City of Chi., 433 F.3d 542, 548 (7th Cir.
No. 12-2870                                                 7

2006); see also United States v. Dumas, 94 F.3d 286, 289
(7th Cir. 1996) (“ ‘Counsel’s schedule and defendant’s
responsibilities,’ without further elaboration, are insuffi-
cient reasons to support the necessary determination
that there was ‘excusable neglect.’ ‘Excusable neglect’
requires something more than a simple failure to meet
the deadline due to a busy schedule.”).
  The district court recognized that Cates’ attorney re-
quired some time to familiarize himself with the
case but found his vague excuses inadequate to justify
the two-month delay in this case.2 On appeal, Cates
points to nothing in the record that convinces us other-
wise. Given Cates’ boilerplate motion and his attorney’s
lackluster attempt to justify the delay, the district court
did not abuse its discretion in determining that this
factor weighed heavily against a finding of excusable
neglect. See In re Canopy Financial, Inc., 708 F.3d 934,
937 (7th Cir. 2013) (“Whenever the judiciary adopts an
‘all the facts and circumstances’ approach, as Pioneer
Investment Services did, litigants need to supply those
details.”); cf. Munoz, 605 F.3d at 372 (approving the
district court’s finding of excusable neglect where the
newly-appointed attorney requested leave to file an
untimely post-conviction motion five days after being
appointed and filed the motion within ten weeks, given



2
   Although the actual delay in the case at the time of Cates’
filing seeking an extension was five months, we, like the
district court, only consider the two months between the
appointment of Cates’ current counsel and the filing of
the motion.
8                                               No. 12-2870

“the sensitive posture in which [the attorney] took over
the case and the unique difficulties she presumably
faced as a result”).
  Regarding the length and impact of the delay and
prejudice to the government, the district court con-
cluded that both factors weighed against a finding of
excusable neglect, although minimally so. The district
court noted that the length of the delay between Cates’
attorney’s appointment and the request for the exten-
sion was “minimal” and did “not pose a great threat of
prejudice to the government’s position.” But the district
court could only speculate as to the length or impact of
any further delay that would result if it granted the
extension because Cates’ motion merely requested more
time to determine whether post-conviction motions
should be filed: Cates did not file the motions, suggest
a date for their filing, or even hint at the specific
grounds for any possible motions. The district court also
observed that over six months had already passed
since Cates was found guilty and that additional delays
would require the district court, its staff, and the
involved attorneys to expend additional resources to
reacquaint themselves with the case.3 Cates has failed to


3
  The district court also mentioned that the government
would be prejudiced by “further unanticipated briefing”
and the cost of the government attorneys traveling from
Washington, D.C. to Milwaukee, but we do not believe these
consequences of granting the extension belong in the Pioneer
analysis. As the government attorneys would have had to
                                               (continued...)
No. 12-2870                                                  9

provide us with any reason not to defer to the district
court’s determination regarding these factors, espe-
cially given that “[a] district court best knows the
impact the error has on the court’s operation and calen-
dar[,] . . . the attorney and his motives, the circumstances
of the case and the judicial economy of excusing the
neglect.” Brown, 133 F.3d at 997.
  As to the final factor, the district court found that Cates
and his attorney acted in good faith. Nevertheless, the
district court concluded that this factor did not overcome
the other three factors that all weighed against a finding
of excusable neglect. Cates wisely does not argue that
a finding of good faith alone warrants the granting of
an extension; a review of our case law on excusable
neglect reveals an unfortunate number of attorneys
who have made honest, if fateful, missteps in repre-
senting their clients that did not constitute excusable
neglect. See, e.g., United States v. Guy, 140 F.3d 735, 736
(7th Cir. 1998) (no excusable neglect where experienced
federal litigator miscalculated the time to file a notice
of appeal). In sum, the district court properly considered
the factors set forth in Pioneer and concluded that


3
  (...continued)
travel and brief the motions had they been timely filed, these
consequences could not be attributed to Cates’ delay in filing
the post-conviction motions. See Munoz, 605 F.3d at 371
(“[T]he proper inquiry is the potential prejudice stemming
from having to retry the case after a delay, rather than merely
from having to respond to a belated motion.”) (emphasis
in original).
10                                              No. 12-2870

“all relevant circumstances surrounding [Cates’] omis-
sion,” 507 U.S. at 395, did not warrant a finding of ex-
cusable neglect. We conclude that the district court
acted within its discretion in reaching this result, and
therefore affirm the district court’s denial of Cates’ motion
for an extension of time to file post-conviction motions.
  In reaching this conclusion, we note that we are par-
ticularly unhappy with the result in this case because
Cates does not challenge any aspect of his conviction or
sentence on appeal—despite this being his direct appeal
from his conviction—and instead argues only that the
district court should have allowed him to file late post-
conviction motions. In denying Cates’ motion, the dis-
trict court noted that Cates still had the opportunity to
appeal his conviction and raise any issues he would
have raised in his post-trial motions. But Cates has de-
clined to do so, stating only that “those appellate issues
not preserved by appropriate trial counsel action are
not available to the Defendant on this appeal.”
  As we indicated at oral argument, we are puzzled
by this position. Of course, the doctrines of waiver and
forfeiture would come into play for any issues not
properly preserved below, but as “[w]aiver principles
must be construed liberally in favor of the defendant,”
United States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010)
(citation omitted), and we “assume forfeiture where
the government fails to proffer a strategic justification
for a defendant’s decision to bypass an argument,”
United States v. Johnson, 668 F.3d 540, 542 (7th Cir. 2012)
(citation omitted), we imagine that at least some issues
No. 12-2870                                              11

would be reviewed for plain error.4 See, e.g., United States
v. Rea, 621 F.3d 595, 602 (7th Cir. 2010) (sufficiency of
the evidence challenge reviewed for plain error when
defendant fails to raise the issue in a Rule 29 motion
for judgment of acquittal at the district court). And plain
error review, while a demanding standard, is better
than no review at all. See, e.g., United States v. Meadows,
91 F.3d 851, 855-56 (7th Cir. 1996) (reversing conviction
for insufficient evidence under plain error standard).
Nevertheless, Cates has failed to raise any potential
challenges to his conviction or sentence, and they are
therefore waived on appeal and left for post-conviction
proceedings.


                   III. CONCLUSION
  For the foregoing reasons, we A FFIRM the judgment of
the district court.




4
  Additionally, Cates’ current attorney represented Cates at
his sentencing, and we are not aware of any impediment to
Cates challenging any aspect of his sentence on this appeal.


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