United States v. Gonzalez ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6675
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGEL MANUEL GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:05-cr-00007-JPB-JES-3)
Submitted: July 27, 2010 Decided: August 11, 2010
Before TRAXLER, Chief Judge, and KING and DUNCAN, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Angel Manuel Gonzalez, Appellant Pro Se. Paul Thomas
Camilletti, Thomas Oliver Mucklow, Assistant United States
Attorneys, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Angel Manuel Gonzalez seeks to appeal the district
court’s order granting his motion for reduction of sentence
under 18 U.S.C. § 3582 (2006). The Government has moved to
dismiss the appeal as untimely, and Gonzalez has responded. 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) (applicable to notices of appeal filed before Dec. 1,
2009); see United States v. Goodwyn, 596 F.3d 233, 235 n.* (4th
Cir. 2010) (“[Section] 3582 motions — which seek only to alter
terms of imprisonment — are criminal in nature.”), cert. denied,
__ U.S. __, 78 U.S.L.W. 3763 (U.S. June 28, 2010) (No. 09-
11064). 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 23, 2009. The
notice of appeal was filed on April 8, 2009. ∗ We previously
remanded this case to the district court for a determination of
whether Gonzalez could show good cause or excusable neglect
∗
See Houston v. Lack, 487 U.S. 266, 276 (1988).
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warranting an extension of the appeal period. On remand, the
district court concluded that an extension of the appeal period
was not warranted, and we find no abuse of discretion in that
decision. See United States v. Breit, 754 F.2d 526, 529 (4th
Cir. 1985) (stating standard of review).
Because Gonzalez failed to file a timely notice of
appeal or to obtain an extension of the appeal period, we grant
the Government’s motion to dismiss and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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