UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN FOGG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:05-cr-00030-JRS-1)
Submitted: July 30, 2009 Decided: August 3, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
John Fogg, Appellant Pro Se. Michael Ronald Gill, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Fogg seeks to appeal the district court’s orders
denying his motion for reduction of sentence under 18 U.S.C.
§ 3582(c)(2) (2006) and denying his subsequent motion for
reconsideration. 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 § 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 Fogg’s
motion for reconsideration on July 14, 2008. Fogg’s notice of
appeal was received by this court on August 5, 2008, after the
ten-day period expired but within the thirty-day excusable
neglect period. See Fed. R. App. P. 4(d) (addressing notice of
appeal mistakenly filed in appellate court). 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 Fogg has shown excusable neglect or good cause
warranting an extension of the ten-day appeal period. The
2
record, as supplemented, will then be returned to this court for
further consideration.
REMANDED
3