                            UNPUBLISHED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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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). *       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.

          The         district       court      entered       judgment      on

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

     *
       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




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