UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7532
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMONT HAROLD GARRISON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:98-cr-00132-JCC-13)
Submitted: December 24, 2008 Decided: January 26, 2009
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Lamont Harold Garrison, Appellant Pro Se. James L. Trump,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamont Harold Garrison seeks to appeal the district
court’s order reducing Garrison’s sentence pursuant to his
motion under 18 U.S.C. § 3582(c)(2) (2006). 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 June 2, 2008, and the ten-
day appeal period ordinarily would have expired on June 16,
2008. See Fed. R. App. P. 26 (providing that “intermediate
Saturdays, Sundays, and legal holidays” are excluded when time
period is less than eleven days). Although Garrison did not
file a notice of appeal within this ten-day period, he filed a
motion to alter or amend the judgment within this time frame.
“[T]he Federal Rules of Criminal Procedure do not
specifically provide for motions for reconsideration [or]
prescribe the time in which they must be filed.” Nilson Van &
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Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir. 1985).
However, the Supreme Court has held that a motion for rehearing
or reconsideration extends the time for filing a notice of
appeal in a criminal case if the motion is filed before the
order sought to be reconsidered becomes final. See United
States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (holding that
would-be appellant who files a timely motion for reconsideration
from criminal judgment is entitled to full time period for
noticing the appeal after the motion to reconsider has been
decided); United States v. Dieter, 429 U.S. 6, 7-8 (1976)
(same); United States v. Healy, 376 U.S. 75, 77-79 (1964)
(same); United States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir.
1993) (same).
The district court entered its order denying
Garrison’s motion to alter or amend on July 3, 2008. Garrison
then had ten days, or until July 18, 2008, to timely file his
notice of appeal. Garrison’s notice of appeal was filed on July
21, 2008, after the expiration of the appeal period 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 Garrison has shown excusable neglect or good cause
warranting an extension of the ten-day appeal period. The
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record, as supplemented, will then be returned to this court for
further consideration.
REMANDED
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