UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:03-cr-00049-8-MU)
Submitted: June 30, 2006 Decided: July 13, 2006
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
David Grant Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina; Karen S. Marston, 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Unpublished opinions are not binding precedent in this circuit.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).
PER CURIAM:
Michael Henderson seeks to appeal his conviction and
sentence. In criminal cases, the defendant must file the notice of
appeal within ten days after the entry of judgment. Fed. R. App.
P. 4(b)(1)(A)(I). With or without a motion, upon a showing of
excusable neglect or good cause, the district court may grant an
extension of up to thirty days to file a notice of appeal. Fed. R.
App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th
Cir. 1985).
The district court entered the amended criminal judgment
on January 13, 2006. Henderson filed the notice of appeal, at the
earliest, on January 31, 2006, after the ten-day period expired but
within the thirty-day excusable neglect period. See Fed. R. App.
P. 26(a)(2), (4) (providing that “intermediate Saturdays, Sundays,
and legal holidays,” including “Martin Luther King, Jr.’s
Birthday,” are excluded when period is less than eleven days).
Because the notice of appeal was filed within the excusable neglect
period, we remand the case to the district court for the court to
determine whether Henderson has shown excusable neglect or good
cause warranting an extension of the ten-day appeal period. The
record, as supplemented, will then be returned to this court for
further consideration. We defer acting on the Government’s motion
to dismiss this appeal until the record is returned to us.
REMANDED
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