UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4610
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY ROGER WARREN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-04-221)
Submitted: March 22, 2006 Decided: April 11, 2006
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Remanded by unpublished per curiam opinion.
David O. Schles, STOWERS & ASSOCIATES, Charleston, West Virginia,
for Appellant. John J. Frail, Monica Lynn Dillon, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry Roger Warren seeks to appeal his conviction,
pursuant to a guilty plea, on one count of attempting to possess
with intent to distribute marijuana and the resulting twenty-four
month sentence. In criminal cases, the defendant must file a
notice of appeal within ten days of the entry of judgment. Fed. R.
App. P. 4(b)(1)(A). With or without a motion, the district court
may extend the time in which to file a notice of appeal for an
additional thirty days upon a finding of excusable neglect or good
cause. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d
351, 353 (4th Cir. 1985).
Here, the appeal period expired on April 20, 2005; the
excusable neglect period expired on May 20, 2005. While Warren’s
pro se notice of appeal is date stamped and filed by the district
court on May 31, 2005, the notice contains Warren’s declaration
under penalty of perjury that he placed an original and copies of
the notice, with first class pre-paid postage affixed, into the
prison mail system on May 14, 2005. See Fed. R. App. P. 4(c).
Thus, it appears Warren delivered the notice to prison officials
for mailing by May 14, 2005, and is therefore entitled to the
benefit of the mailbox rule of Houston v. Lack, 487 U.S. 266
(1988). Because the record indicates that Warren’s notice of
appeal should be deemed filed within the excusable neglect period,
we remand the case to the district court for the court to determine
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whether Warren has demonstrated excusable neglect or good cause
warranting an extension of the ten-day appeal period.* The record
as supplemented with the district court’s findings on remand will
then be returned to this court. We also defer ruling on the United
States’ motion to dismiss the appeal pending the district court’s
determination. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
REMANDED
*
Should the Government dispute that Warren’s notice of appeal
was properly delivered to prison officials within the excusable
neglect period, the district court should resolve whether and when
Warren satisfied the requirements of Fed. R. App. P. 4(c).
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