UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7212
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM ISAAC SMALLS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00008-MR-1; 1:12-cv-00286-MR)
Submitted: December 16, 2014 Decided: December 30, 2014
Before GREGORY and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
William Isaac Smalls, Appellant Pro Se. Donald David Gast,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Isaac Smalls seeks to appeal the district
court’s order denying relief on his motion under 28 U.S.C.
§ 2255 (2012). In a civil case in which the United States or
its officer or agency is a party, parties have sixty days
following the entry of the district court’s final judgment or
order in which to file a notice of appeal. Fed. R. App. P.
4(a)(1)(B). However, if a party moves for an extension of time
to appeal within thirty days after expiration of the original
appeal period and demonstrates excusable neglect or good cause,
a district court may extend the time to file a notice of appeal.
Fed. R. App. P. 4(a)(5)(A); Washington v. Bumgarner, 882 F.2d
899, 900-01 (4th Cir. 1989).
Smalls’ notice of appeal was received in the district
court after the expiration of the sixty-day appeal period but
within the thirty-day excusable neglect period. In his notice
of appeal, Smalls requested an extension of time to appeal
because he was in transit when the district court served him
with notice of its judgment and he did not receive it until
after the sixty-day appeal period expired. We conclude that
Smalls’ notice of appeal should be construed as a motion
pursuant to Rule 4(a)(5)(A). Accordingly, we remand the case to
the district court for the limited purpose of determining
whether Smalls has demonstrated excusable neglect or good cause
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warranting an extension of the sixty-day appeal period. The
record, as supplemented, will then be returned to this court for
further consideration.
REMANDED
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