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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 94-50041
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER BRETT CLARK,
Defendant-Appellant.
______________________________________________
Appeals from the United States District Court for the
Western District of Texas
______________________________________________
(April 18, 1995)
Before REAVLEY, GARWOOD, and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Peter Brett Clark (Clark) appeals the
district court's denial of his motion to extend time to file a
notice of appeal. We vacate and remand.
Facts and Proceedings Below
After pleading guilty to a violation of 18 U.S.C. § 922(g)(1)
(felon in possession of a firearm), Clark was sentenced to twenty-
seven months in prison and three years of supervised release.
Several months after his release from jail, Clark was charged with
violating the terms and conditions of his supervised release.

Clark's probation officer then petitioned the district court for
the revocation of Clark's supervised release. The district court
referred the matter to a magistrate judge, who, following a
hearing, filed a report that recommended revoking Clark's
supervised release and sentencing him to twenty-four months in
prison. Clark objected to the report and requested a hearing in
the district court. In an order and judgment filed on January 6,
1994, the district court overruled Clark's objections; adopted the
report and recommendation of the magistrate judge; and, in Clark's
absence and without a hearing, revoked his supervised release and
sentenced him to twenty-four months in prison. The order was
entered on January 7, 1994.
On January 20, 1994, Clark filed a notice of appeal. In an
unpublished opinion, we held that the notice of appeal was
untimely, having been filed two days after the ten-day limit
provided under Federal Rule of Appellate Procedure 4(b),1 and
remanded the case to the district court to determine whether the
untimeliness was due to excusable neglect.2 On remand, Clark filed
an unopposed motion to extend the time to file a notice of appeal,
1
Rule 4(b) requires a defendant in a criminal case to file a
notice of appeal within ten days after "the entry either of the
judgment or order appealed from, or of a notice of appeal by the
Government." Id. In this case, the final day for filing a
notice of appeal was January 18, 1994, because the tenth day was
a legal holiday. Fed.R.App.P. 26(a).
2
Because Clark's notice of appeal, though late, was within
Rule 4(b)(4)'s thirty-day window, this Court construed Clark's
notice of appeal as a motion for a determination whether
excusable neglect entitles the defendant to an extension of time
on appeal, citing United States v. Golding, 739 F.2d 183, 184
(5th Cir. 1984).
2

in which counsel explained that, in calculating the time available,
he had incorrectly applied Federal Rule of Criminal Procedure
45(a), the time-computation rule applicable to motions and
applications before the district court, rather than Federal Rule
of Appellate Procedure 26(a), the time-computation rule applicable
to notices of appeal.3 The district court denied Clark's motion.
Asserting that the excusable neglect standard is "a strict one,"
the district court concluded that "a failure to understand and
comply with the rules governing appeals will virtually never
qualify as excusable neglect" under Rule 4(b).
Clark then filed an unopposed motion for reconsideration, in
which he argued that counsel's misreading of the rules was at least
partly a result of an "ambiguity in the structure of the federal
rules." Clark also pointed out that the fault was entirely
counsel's and that the delay was insubstantial and had not
prejudiced the government. In an order dated March 16, 1994, the
district court denied Clark's motion for reconsideration. Clark
now appeals.
Discussion
Clark contends that the district court applied the wrong
standard in determining whether the neglect of his counsel was
excusable under Federal Rule of Appellate Procedure 4(b). Clark
3
Clark's counsel understood that he had ten days to file a
notice of appeal. In computing the ten-day period, however, he
incorrectly excluded weekends. Federal Rule of Appellate
Procedure 26(a) excludes weekends only if the time "prescribed or
allowed" is less than seven days. In contrast, Federal Rule of
Criminal Procedure 45(a), the rule counsel relied on, excludes
weekends only if the time "prescribed or allowed" is less than
eleven days.
3

maintains that the Supreme Court's decision in Pioneer Inv.
Services, Inc. v. Brunswick Assocs. Ltd. Partnership, 113 S.Ct.
1489 (1993), not cited by the district court, abrogates this
Circuit's prior case law strictly interpreting excusable neglect.4
See, e.g., Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th
Cir. 1990); Campbell v. Bowlin, 724 F.2d 484, 486-88 (5th Cir.
1984). In particular, Clark argues that the district court's
statement that mistakes of law "virtually never qualify as
excusable neglect" conflicts with Pioneer to the extent that
decision holds that a misconstruction of the rules is not
necessarily an invalid excuse.5
In Pioneer, the Supreme Court flexibly interpreted the
excusable neglect standard of Bankruptcy Rule 9006(b)(1), which
allows a bankruptcy court to permit a late filing of proofs of
claim if the movant's failure to comply with an earlier deadline
was the result of excusable neglect. The Court rejected the
argument that excusable neglect was limited to errors caused by
circumstances beyond the late-filing party's control, concluding
that the concept of neglect is "somewhat elastic" and may include
"inadvertent delays." Pioneer, 113 S.Ct. at 1496. The Court was
careful to note, however, that "inadvertence, ignorance of the
rules, or mistakes construing the rules do not usually constitute
4
Both sides concede that they did not cite Pioneer to the
district court.
5
Under either standard, the district court's finding is
reviewed for abuse of discretion. See Pioneer, 113 S.Ct. at
1500; United States v. Lewis, 522 F.2d 1367, 1369 (5th Cir.
1975), cert. denied, 97 S.Ct. 168 (1976).
4

'excusable' neglect . . . ." Id. In determining whether a party's
neglect is excusable, the Court emphasized the equitable nature of
the inquiry, which takes into account the following circumstances:
"the danger of prejudice to the debtor, 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." Id. at 1498.
The Court then found excusable neglect because the late-filing
party's failure to meet the deadline was attributable at least in
part to a "dramatic ambiguity" in the bankruptcy court's peculiar,
misleading, and inconspicuous notification of the bar date. Id. at
1500. The other factors also supported a finding of excusable
neglect. Id.
We agree with Clark that Pioneer controls determinations of
excusable neglect under Rule 4(b). In United States v. Evbuomwan,
No. 93-1738 at 4 (5th Cir. Sept. 8, 1994), reported at 36 F.3d 89
(5th Cir. 1994) (table), an unpublished opinion, this Court held
that Pioneer applies to a Rule 4(b) finding of excusable neglect.
We follow that holding today and note the agreement of the only
other Circuit that has considered this exact question. See United
States v. Hooper, 9 F.3d 257, 259 (2d Cir. 1993).6 We also note
the uniformity of the Circuits in extending Pioneer beyond the
context of bankruptcy. See City of Chanute v. Williams Natural Gas
6
Pioneer rejects the notion that excusable neglect can be
based on the fact that the default in question was attributable
to counsel rather than to the represented party. Id. at 1499.
Accordingly, we reject Clark's argument that there was excusable
neglect because any fault was that of his counsel, not of his own
personally. We also reject the contention that this aspect of
Pioneer does not apply to court-appointed counsel.
5

Co., 31 F.3d 1041, 1046 (10th Cir. 1994) (Fed.R.App.P. 4(a)), cert.
denied, 115 S.Ct. 1254 (1995); Kyle v. Campbell Soup Co., 28 F.3d
928, 931 (9th Cir.) (Fed.R.Civ.P. 6(b)), cert. denied, 115 S.Ct.
185 (1994); Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16
F.3d 501, 503 (2nd Cir. 1994) (Fed.R.App.P. 4(a)).
The change in our case law made by Pioneer is, however, more
subtle than dramatic. This Circuit recognized before Pioneer that,
"under proper circumstances," Rule 4(b)'s excusable neglect
provision encompasses "ignorance or neglect of counsel in filing
late notices of appeal." United States v. Lewis, 522 F.2d 1367,
1369 (5th Cir. 1983). Nevertheless, Pioneer does allow somewhat
more room for judgment in determining whether mistakes of law are
excusable than does the strict standard for excusable neglect
espoused by some of our prior decisions. See, e.g., Allied Steel,
909 F.2d at 142. We recognized Pioneer's flexibility in Evbuomwan.
There, defense counsel "had failed to timely file the notice of
appeal due to his misinterpretation of Fed. R. App. P. 26(c) (three
extra days to respond to papers served by mail)." Op. at 3. The
other Pioneer factors, furthermore, weighed in the defendant's
favor. Id. at 5. The district court found the neglect excusable,
and we affirmed, holding that the district court did not abuse its
discretion under Pioneer. Id.
To the extent, then, that our prior decisions strictly
interpret excusable neglect in conflict with Pioneer, they are
disapproved. Accordingly, we remand this matter to the district
court to reconsider Clark's motion under the standard announced in
Pioneer. In so doing, however, we do not hold that it would be an
6

abuse of discretion for the district court, on remand, to find no
excusable neglect on these facts. As Clark conceded at oral
argument, this is a garden variety criminal appeal; there was
nothing complicated or novel about the procedural posture of the
case, and noticing an appeal here required nothing unusual or
difficult. The applicable rules are, furthermore, unambiguous, and
whatever confusion Clark's counsel may have suffered because of
these rules, we clearly cannot say that his confusion mandates a
finding of excusable neglect as a matter of law. See United States
v. Hooper, 43 F.3d 26, 29 (2d Cir. 1994); Kyle, 28 F.3d at 930-32;
Weinstock, 16 F.3d at 503. Unlike Pioneer, there is simply no
dramatic ambiguity in this case which would mandate such an
extraordinary determination.
Conclusion
For the foregoing reasons, we
VACATE and REMAND.
7