UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6612
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LASHON MAURICE GAITHER, a/k/a Sld Dft 5:05CR9-10-V, a/k/a
Morie,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-10)
Submitted: June 29, 2009 Decided: July 15, 2009
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Lashon Maurice Gaither, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lashon Maurice Gaither seeks to appeal the district
court’s order denying his motion for reduction of sentence under
18 U.S.C. § 3582 (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 February 27, 2009. Gaither
filed the notice of appeal on March 27, 2009,∗ after the ten-day
period expired but before the expiration of 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 Gaither
has shown excusable neglect or good cause warranting an
extension of the ten-day appeal period. The record, as
∗
See Houston v. Lack, 487 U.S. 266, 276 (1988).
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supplemented, will then be returned to this court for further
consideration.
REMANDED
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