UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6974
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD DWAYNE ALLISON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen M. Williams, Senior
District Judge. (1:04-cr-00093-gmw-pms-1)
Submitted: July 15, 2009 Decided: July 29, 2009
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Richard Dwayne Allison, Appellant Pro Se. Jennifer R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Dwayne Allison seeks to appeal the district
court’s order denying his motion for reduction of sentence under
18 U.S.C. § 3582 (2006). The Government has moved to dismiss
the appeal as untimely filed. 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 April 7, 2009. Allison
filed the notice of appeal on May 15, 2009, 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 Allison has shown
excusable neglect or good cause warranting an extension of the
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ten-day appeal period. The record, as supplemented, will then
be returned to this court for further consideration.
REMANDED
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