Opinion
No. 03-40026-01-SAC.
December 21, 2004
ORDER
By order of the Tenth Circuit filed December 3, 2004, this case was partially remanded to this court for a determination of whether the defendant's failure to comply with the filing requirements of Fed.R.App.P. 4(b)(1)(A)(i) was due to excusable neglect or good cause. The Tenth Circuit's order gives the defendant fifteen days to file a motion for extension of time pursuant to Fed.R.App.P. 4(b)(4). Defense counsel has filed the required motion. (Dk. 77). Thus, the district court now must determine whether the defendant has made a showing of excusable neglect.
In United States v. Torres, 372 F.3d 1159, 1161-64 (10th Cir. 2004), the Tenth Circuit applied the Supreme Court's construction of "excusable neglect" from Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993), to Fed.R.App.P. 4(b)(4), including:
The Court held that the determination whether a party's neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395. Such circumstances include "[1] the danger of prejudice to the [nonmoving party], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith." Id.Torres, 372 F.3d at 1162. "`[F]ault in the delay remains a very important factor — perhaps the most important single factor — in determining whether neglect is excusable.'" Id. at 1163 (quoting City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994), cert. denied, 513 U.S. 1191 (1995)). In Pioneer, the Court recognized that Congress was allowing courts, when appropriate, to "accept late filings caused by inadvertence, mistake, or carelessness." 507 U.S. at 388. The appellant bears the burden of providing sufficient reasons for failure to comply with filing requirements. United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979).
The defendant mailed his pro se notice of appeal and accompanied it with a letter stating, "I asked my attorney to file a notice of appeal on my behalf. He stated, `my job is done.' I only recently learned how to ask for a notice of appeal filing." (Dk. 67, pt. 2). In response to the Tenth Circuit's recent remand order, defense counsel filed the motion which included the following statement: "Defendant did not contact counsel, but rather filed an appeal pro se. Defense counsel and defendant discussed an appeal at defendant's sentencing. However, defense counsel was made aware that defendant wanted appeal only when defense counsel received defendant's pro se appeal." (Dk. 77).
Because the defendant specifically waived his right to appeal his sentence in the plea agreement, the government arguably would be unfairly prejudiced and burdened by this appeal. See United States v. Chavez, 17 Fed. Appx. 847, 850, 2001 WL 950272, at *2 (10th Cir. Aug. 17, 2001). The length of delay is not significant here. The defendant's good faith is subject to question in two respects. First, the defendant's desire and right to appeal is subject to his specific waiver in the plea agreement. Second, the defendant denies knowledge about how to ask for an appeal to be filed, despite the court's discussion and express instructions about the same at the sentencing hearing. Finally, the defendant's stated reasons for the delay fall short of excusable neglect. The defendant offers no meaningful excuse for not asking the court at the sentencing hearing to have a notice of an appeal filed on his behalf or for not sending a letter immediately to the court or counsel with this request. The defense counsel's letter offers no substantial reasons for the defendant's lateness other than the defendant's delayed and undisclosed desire to appeal and his pro se status. Such inconsequential reasons could be asserted in many such cases, and if found sufficient, would trivialize the excusable neglect standard.
IT IS THEREFORE ORDERED that the defendant's motion for extension of time (Dk. 77) pursuant to Fed.R.App.P. 4(b)(4) is denied.
IT IS FURTHER ORDERED that the clerk of the district court shall supplement the preliminary appellate record by transmitting to the Tenth Circuit copies of all documents filed and this order entered as a result of the partial remand.