Filed: August 5, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 02-4292(L)
(CR-96-21)
United States of America,
Plaintiff - Appellee,
versus
Raymond Jerome Francis, etc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed July 22, 2002, as follows:
On the cover sheet, section 7 -- the status line is corrected
to read “No. 02-4292 motions denied and No. 02-4450 dismissed by
unpublished per curiam opinion.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4292
RAYMOND JEROME FRANCIS, a/k/a
Raymond Rudone Ramsey,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4450
RAYMOND JEROME FRANCIS, a/k/a
Raymond Rudone Ramsey,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-96-21)
Submitted: June 21, 2002
Decided: July 22, 2002
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
____________________________________________________________
No. 02-4292 motions denied and No. 02-4450 dismissed by unpub-
lished per curiam opinion.
____________________________________________________________
COUNSEL
Neil Ian Jacobs, Rockville, Maryland, for Appellant. Brian Lee Whis-
ler, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.
____________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
____________________________________________________________
OPINION
PER CURIAM:
Raymond Jerome Francis seeks to appeal the amended criminal
judgment reimposing the original terms of imprisonment and super-
vised release relating to his drug and firearms convictions (No. 02-
4292). He also seeks to appeal the district court's order denying his
motion for reduction of sentence under 18 U.S.C.A. § 3582 (West
2000) (No. 02-4450). In No. 02-4292, the Government has moved to
dismiss the appeal as untimely, and Francis has moved to summarily
vacate the district court's order, or, in the alternative, to hold the
appeal in abeyance pending the Supreme Court's resolution of a peti-
tion for a writ of certiorari in another case. In No. 02-4450, we must
determine sua sponte whether Francis timely filed his notice of
appeal.
With regard to No. 02-4292, the district court's order amending the
criminal judgment to reimpose Francis's original sentence arose in the
context of a § 2255 proceeding. See 28 U.S.C.A. § 2255 (West Supp.
2001). Specifically, pursuant to a § 2255 motion the district court
granted Francis partial relief from his sentence. We vacated and
remanded for reimposition of the original sentence, and Francis now
seeks to raise issues related to the reimposed sentence. Under those
circumstances, a party has sixty days in which to note a timely appeal.
See Fed. R. App. P. 4(a). In No. 02-4292, the district court entered
the amended criminal judgment on March 6, 2002, see Fed. R. App.
2
P. 4(b)(6). Francis dated the notice of appeal March 27. The envelope
was post-marked on April 1, and the notice of appeal was filed in the
district court on April 4, 2002. The notice of appeal was therefore
timely, and the Government's motion to dismiss the appeal is accord-
ingly denied. We also deny Francis's motion to summarily vacate the
district court's order or, in the alternative, to hold this appeal in abey-
ance.
Turning to Francis's appeal in No. 02-4450 concerning the denial
of his § 3582 motion, we dismiss the appeal for lack of jurisdiction.
A § 3582 motion is criminal in nature, see United States v. Alvarez,
210 F.3d 309, 310 (5th Cir. 2000) (holding that § 3582 proceeding is
criminal in nature), and therefore Francis had ten days from the entry
of judgment to note a timely appeal. See Fed. R. App. P. 4(b)(1)(A).
The district court could extend the appeal period under Rule 4(b)(4)
upon a showing of excusable neglect or good cause. See also United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). However, the dis-
trict court may not extend the appeal period beyond the forty days
provided in Rule 4(b). Fed. R. App. P. 26(b)(1); see United States v.
Raynor, 939 F.2d 191, 196 (4th Cir. 1991).
Here, the district court entered its order denying Francis' § 3582
motion on April 5, 2002. The ten-day appeal and thirty-day excusable
neglect periods expired on May 15, 2002. Because Francis did not file
his notice of appeal until May 29, 2002, we do not have jurisdiction
to consider the merits of the appeal. See Raynor, 939 F.2d at 196. We
therefore dismiss the appeal in No. 02-4450 as untimely.
No. 02-4292 - MOTIONS DENIED
No. 02-4450 - DISMISSED
3