UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4527
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AVELINO OSORIO-CORTEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00373-NCT-1)
Submitted: January 15, 2009 Decided: January 21, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, PA, Winston-Salem, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Avelino Osorio-Cortez seeks to appeal his conviction
and eighty-seven-month 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). 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 judgment on March 19,
2008. Osorio-Cortez filed the notice of appeal at the latest on
April 28, 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 Osorio-Cortez 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.
REMANDED
2