UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLAUDIO OTERO, JR., a/k/a Bill,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:99-cr-70054-nkm-6)
Submitted: April 28, 2009 Decided: May 12, 2009
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Remanded by unpublished per curiam opinion.
Claudio Otero, Jr., Appellant Pro Se. Anthony Paul Giorno,
Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Claudio Otero, Jr., seeks to appeal the district
court’s order denying his motion for reduction of sentence filed
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 denying the
motion for reduction of sentence on September 15, 2008, and the
ten-day appeal period expired on September 29, 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). The thirty-day excusable neglect period expired
on October 29, 2008.
When a criminal defendant’s notice of appeal is filed
more than ten days following judgment but within the thirty-day
excusable neglect period, we generally remand so the district
court can assess whether there has been good cause or excusable
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neglect to excuse the late filing. Because Otero is
incarcerated, the notice of appeal is considered filed as of the
date it was properly delivered to prison officials for mailing
to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487
U.S. 266, 276 (1988). Otero’s notice of appeal was dated
October 29, 2008, the last day of the excusable neglect period.
However, it was post-marked October 30, 2008, and was date-
stamped received in the district court on November 4, 2008.
Because it is unclear when Otero gave his notice of
appeal to prison officials for mailing, we remand the case to
the district court for the court to determine whether Otero’s
notice of appeal was filed within the excusable neglect period
and, if so, whether Otero 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
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