United States v. Myers

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 02-6472 DONELL MYERS, Defendant-Appellant.  Appeal from the United States District Court for the District of South Carolina, at Charleston. Falcon B. Hawkins, Senior District Judge. (CR-95-152) Submitted: May 14, 2002 Decided: May 31, 2002 Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. COUNSEL Donell Myers, Appellant Pro Se. Sean Kittrell, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. MYERS OPINION PER CURIAM: Donell Myers seeks to appeal the district court’s order denying his motion for reduction of sentence under 18 U.S.C.A. § 3582(c)(2) (West 2000), based upon Amendment 599 to the sentencing guide- lines. At the outset, we must determine whether Myers timely filed his notice of appeal. In criminal cases, the defendant must file his notice of appeal within ten days of the entry of judgment. Fed. R. App. P. 4(b)(1)(A); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). 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 excus- able neglect or good cause. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). Where excusable neglect is apparent from the face of record, we need not remand the case to the district court for such determination. Reyes, 759 F.2d at 354. The district court entered its order on the criminal docket on Febru- ary 7, 2002, see Fed. R. App. P. 4(b)(6); the ten-day appeal period expired on February 18, 2002.* Myers dated the notice of appeal Feb- ruary 20, and it was received in this court on March 4, 2002. See Fed. R. App. P. 4(d). Myers’ notice of appeal was, therefore, filed beyond the ten-day appeal period but within the excusable neglect period. We find that excusable neglect appears on the face of the record. Reyes, 759 F.2d at 354; see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993) (discussing factors in determining whether excusable neglect exists); United States v. Clark, 51 F.3d 42, 44 (5th Cir. 1995) (holding that "Pioneer controls determinations of excusable neglect under Rule 4(b)"). Thus, we have jurisdiction over Myers’ appeal. Turning to the merits of Myers’ claims, we have reviewed the record and the district court’s order and find no reversible error. Accordingly, we affirm on the reasoning of the district court. United States v. Myers, No. CR-95-152 (D.S.C. Feb. 7, 2002). We dispense *The ten-day period expired on Sunday, February 17, 2002. Thus, Myers had until Monday, February 18, to timely file his notice of appeal. Fed. R. App. P. 26(a)(3). UNITED STATES v. MYERS 3 with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED