UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6402
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARVEY LEE MOXLEY, a/k/a Sandy,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:98-cr-00068-RLV-8)
Submitted: August 28, 2009 Decided: September 9, 2009
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Harvey Lee Moxley, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina;
Robert Jack Higdon, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harvey Lee Moxley seeks to appeal the district court’s
order granting 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 granting the
motion for reduction of sentence on February 6, 2009. The ten-
day appeal period expired on February 23, 2009. See Fed. R.
App. P. 26(a)(2) (providing “intermediate Saturdays, Sundays,
and legal holidays” are excluded when time period is less than
eleven days). The excusable neglect period expired on March 25,
2009.
Moxley’s notice of appeal includes a certificate of
service stating that he placed the notice of appeal in the
prison legal mail system on February 20, 2009, within the ten-
day appeal period. However, Moxley mailed his notice of appeal
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with a cover letter dated February 25, 2009, a date outside the
ten-day appeal period, but within the thirty-day excusable
neglect period. See Fed. R. App. P. 4(c)(1); Houston v. Lack,
487 U.S. 266, 276 (1988). Because it is unclear whether Moxley
timely filed his notice of appeal or filed it within the
excusable neglect period, we remand the case to the district
court for the court to determine whether Moxley timely filed his
notice of appeal and, if not, whether Moxley 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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