United States v. Garcia-Benitez , 354 F. App'x 737 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7221
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAUL GARCIA-BENITEZ, a/k/a Mario,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conard, District
Judge. (5:06-cr-00046-GEC-3)
Submitted: November 19, 2009 Decided: December 2, 2009
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Saul Garcia-Benitez, Appellant Pro Se. Donald Ray Wolthuis,
Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Saul Garcia-Benitez seeks to appeal the district
court’s order denying his motion for reduction of sentence under
18 U.S.C. § 3582 (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 June 5, 2009.
Garcia-Benitez filed the notice of appeal on June 24, 2009, ∗
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
∗
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
Garcia-Benitez 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
3