UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7365
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LOUIS MCPHERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (4:00-cr-00081-H; 4:02-cv-00058)
Submitted: February 21, 2008 Decided: March 7, 2008
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Remanded by unpublished per curiam opinion.
David Louis McPherson, Appellant Pro Se. Eric Evenson, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Louis McPherson seeks to appeal the district
court’s order denying his motion for reconsideration of the denial
of his 28 U.S.C. § 2255 (2000) motion. The district court’s
judgment was entered on April 19, 2007. McPherson filed his notice
of appeal, which was dated September 10, on September 17. In his
notice of appeal, McPherson stated that he did not receive notice
of the district court’s judgment until September 10. Even giving
McPherson the benefit of Houston v. Lack, 487 U.S. 266, 276 (1988),
his notice was untimely filed. See Fed. R. App. P. 4(a)(1)(B).
Under Fed. R. App. P. 4(a)(6), the district court may
reopen the time to file an appeal if (1) the moving party did not
receive notice of entry of judgment within twenty-one days after
entry, (2) the motion is filed within 180 days of entry of judgment
or within seven days of receiving notice from the court, whichever
is earlier, and (3) no party would be prejudiced. We remand to the
district court to determine whether McPherson is entitled to the
benefit of Rule 4(a)(6) to reopen the time to file an appeal. The
record, as supplemented, will then be returned to this court for
further consideration.
REMANDED
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