United States v. Legree ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4846
BRYANT LEGREE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CA-93-92-5-2CES)
Submitted: August 25, 1998
Decided: October 6, 1998
Before WIDENER and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.
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Remanded by unpublished per curiam opinion.
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COUNSEL
Bryant Legree, Appellant Pro Se. Cameron Glenn Chandler, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Bryant Legree appeals from the district court order denying his
motion for reduction of sentence based on the retroactive application
of Amendment 505 of the sentencing guidelines, which lowered the
maximum base offense level dictated by the Drug Quantity table in
U.S.S.G. § 2D1.1 from level 42 to level 38. (R. 163). See U.S.S.G.
App. C, Amend. 505; U.S.S.G. § 2D1.1(c)(2) (1994). The amendment
correspondingly reduced Legree's sentencing range from a mandatory
term of life imprisonment to a range of 360 months to life imprison-
ment. The district court order from which Legree appeals stated in rel-
evant part:
This court concludes that Amendment 505 does not create
a mandatory right to reduction of sentence for defendant. On
consideration of the matter, this court concludes that defen-
dant's sentence was correct and that no reduction is appro-
priate.
Given the district court's apparently favorable view to his receiving
a shorter sentence than the guidelines allowed at his sentencing,*
Legree asserts that the district court erred by failing to consider perti-
nent statutory factors in denying his motion for resentencing.
In criminal cases, a defendant has ten days within which to file in
the district court a notice of appeal after entry either of the judgment
or order appealed from, or of a notice of appeal by the Government.
Fed. R. App. P. 4(b). The only exceptions to the ten-day appeal period
are when the defendant makes a timely motion as specified in Rule
4(b), or the district court extends the time to appeal or reopens the
appeal period for excusable neglect. The district court may extend the
time for filing a notice of appeal for thirty days upon a showing of
excusable neglect with or without a motion being filed. Legree filed
his notice of appeal outside the ten-day appeal period prescribed in
Fed. R. App. P. 4(b). However, because Legree filed his notice of
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*The district court stated at sentencing: "Maybe they [the Fourth Cir-
cuit] can find some way to do something about this life sentence."
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appeal within thirty days of the expiration of the appeal period, the
district court had the discretion to extend the appeal period upon a
showing of excusable neglect. See United States v. Reyes, 759 F.2d
351, 353 (4th Cir. 1985). On this record, it is unclear whether Legree
has made an adequate showing of excusable neglect to render his
notice of appeal timely. See id. Accordingly, we remand for the dis-
trict court to determine whether Legree has shown excusable neglect.
The record, as supplemented, will then be returned to this court for
further consideration. We dispense with oral argument because the
facts and legal contentions are adequately before the court and argu-
ment would not aid the decisional process.
REMANDED
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