UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8469
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN RHONDU SMITHWICK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:06-cr-00121-F-1; 5:08-cv-00538-F)
Submitted: July 7, 2009 Decided: July 20, 2009
Before TRAXLER, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Remanded by unpublished per curiam opinion.
Shawn Rhondu Smithwick, Appellant Pro Se. Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Rhondu Smithwick seeks to appeal the district
court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion
for reduction of sentence. In criminal cases, the defendant
must file a notice of appeal within ten days of the entry of the
order being appealed. Fed. R. App. P. 4(b)(1)(A); United States
v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (holding that §
3582(c)(2) proceeding is criminal in nature and ten-day appeal
period applies). With or without a motion, the district court
may grant an extension of time to file a notice of appeal of up
to thirty days upon a showing of excusable neglect or good
cause. 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
Smithwick’s § 3582(c)(2) motion on October 17, 2008. The notice
of appeal was filed November 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
limited purpose of determining whether Smithwick 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