UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6929
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KANTON TALLEY,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:05-cr-00207-1)
Submitted: October 21, 2008 Decided: October 27, 2008
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Kanton Talley, Appellant Pro Se. John J. Frail, Assistant
United States Attorney, Charleston, West Virginia, Richard
Gregory McVey, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kanton Talley seeks to appeal the district court’s
order granting his motion for reduction of sentence under 18
U.S.C. § 3582(c)(2) (2000). 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); see United States v.
Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (holding that § 3582
proceeding is criminal in nature and ten-day appeal period
applies). 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 its order granting the
motion for reduction of sentence on May 2, 2008. Talley filed
the notice of appeal, at earliest, on May 20, 2008, * after the
ten-day period expired but within the thirty-day excusable
neglect period. 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 Talley has shown
excusable neglect or good cause warranting an extension of the
*
Because Talley was not then represented by counsel, this
filing date is determined pursuant to Houston v. Lack, 487 U.S.
266, 276 (1988).
2
ten-day appeal period. The record, as supplemented, will then
be returned to this court for further consideration. We deny
Talley’s motion for the appointment of counsel on appeal.
REMANDED
3