United States v. Jones , 332 F. App'x 77 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD CORNELL JONES,
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-00466-JRS-1)
Submitted: September 4, 2009 Decided: September 17, 2009
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Reginald Cornell Jones, Appellant Pro Se. Norval George
Metcalf, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Cornell Jones 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); 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 the
motion for reduction of sentence on April 23, 2009. Jones filed
the notice of appeal on June 1, 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 Jones has shown excusable neglect or
∗
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).
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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. We defer action on the Government’s
motion to dismiss, pending the district court’s excusable
neglect determination.
REMANDED
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