UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7803
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORENZO BUTTS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:00-cr-00067-JBF-1)
Submitted: March 15, 2010 Decided: April 14, 2010
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Lorenzo Butts, Jr., Appellant Pro Se. Kevin Michael Comstock,
Joseph Evan DePadilla, Assistant United States Attorneys,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Butts, Jr., 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); 1 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 August 14, 2009. Butts
filed the notice of appeal on September 11, 2009, 2 after the ten-
day period expired but within the thirty-day excusable neglect
1
Rule 4(b)(1)(A) was amended effective December 1, 2009, to
provide a period of fourteen calendar days to file a notice of
appeal. This amendment does not affect the timeliness of
Butts’s notice of appeal.
2
For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).
2
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 Butts 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
3