United States v. Silas Jones, Jr. , 675 F. App'x 392 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7615
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SILAS DOUGLAS JONES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00317-RBH-4)
Submitted: January 31, 2017 Decided: February 8, 2017
Before GREGORY, Chief Judge, and SHEDD and KEENAN, Circuit
Judges.
Remanded by unpublished per curiam opinion.
John J. Korzen, Director, Kyleigh E. Feehs, Blake E. Stafford,
Third-Year Law Students, WAKE FOREST UNIVERSITY SCHOOL OF LAW
APPELLATE ADVOCACY CLINIC, Winston-Salem, North Carolina, for
Appellant. Beth Drake, Acting United States Attorney, Robert
Frank Daley, Jr., Alfred W. Bethea, Jr., Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Silas Douglas Jones, Jr., seeks to appeal the district
court’s order denying his motion for reduction of sentence under
18 U.S.C. § 3582(c)(2)(2012). The Government moves to dismiss
the appeal as untimely filed. In criminal cases, the defendant
must file the notice of appeal within 14 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(c)(2) proceeding is criminal in nature and Rule
4(b)(1)(A) appeal period applies). With or without a motion,
upon a showing of excusable neglect or good cause in a criminal
proceeding, the district court may grant an extension of up to
30 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 Jones’ motion
on September 16, 2015. The district court received the notice
of appeal on October 14, after the expiration of the appeal
period but within the 30-day excusable neglect period. Because
Jones is incarcerated, the notice is considered filed as of the
date it was properly delivered to prison officials for mailing
to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487
U.S. 266, 276 (1988). The record does not reveal when Jones
delivered the notice of appeal to prison officials for mailing.
Accordingly, we remand the case for the limited purpose of
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allowing the district court to obtain this information from the
parties and to determine whether the filing was timely under
Fed. R. App. P. 4(b)(1)(A), (c)(1), and Houston v. Lack. If the
district court finds the notice of appeal was not timely filed,
it should then consider whether an extension of the appeal
period is warranted. The record, as supplemented, will then be
returned to this court for further consideration.
REMANDED
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