United States v. Clanton , 294 F. App'x 799 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6574
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN TREWAYNE CLANTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:05-cr-00031-JLK)
Submitted: September 5, 2008 Decided: October 1, 2008
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Jonathan Trewayne Clanton, Appellant Pro Se. Ronald Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Trewayne Clanton seeks to appeal the district
court’s order granting a reduction in his sentence pursuant to 18
U.S.C. § 3582(c)(2) (2000). 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 a reduction
in sentence on March 25, 2008. Clanton filed the notice of appeal
on April 11, 2008,* 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 Clanton
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
*
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