United States v. Walker , 308 F. App'x 681 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7442
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC SHAWN WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:02-cr-00161-RLW-1)
Submitted: January 15, 2009 Decided: January 22, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Eric Shawn Walker, Appellant Pro Se. Olivia N. Hawkins, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Shawn Walker seeks to appeal the district court’s
order denying his motion for reduction of sentence under 18
U.S.C. § 3582(c)(2) (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 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 denying the
motion for reduction of sentence on July 9, 2008. Walker filed
the notice of appeal on July 28, 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 Walker 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).
2
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
3