United States v. Cosby , 357 F. App'x 543 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7814
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEANNIE LARGENT COSBY,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00033-MR-3)
Submitted: December 15, 2009 Decided: December 22, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Jeannie Largent Cosby, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeannie Largent Cosby seeks to appeal the district
court’s order denying her motion for reduction of sentence under
18 U.S.C. § 3582(c)(2) (2006). After entry of the district
court’s order, Cosby had ten days to file her notice of appeal.
Fed. R. App. P. 4(b)(1)(A)(i) (2008) (amended Dec. 1, 2009) 1 ; see
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000)
(holding that a § 3582(c)(2) 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 31, 2009. The ten-day
appeal period expired on August 14, 2009. See Fed. R. App. P.
26(a)(2) (2008) (amended Dec. 1, 2009). The thirty-day
excusable neglect period expired on September 14, 2009. See
Fed. R. App. P. 26(a)(3) (2008) (amended Dec. 1, 2009). Cosby
filed her notice of appeal, at the earliest, on August 30, 2009,
after the expiration of the ten-day appeal period, but within
1
On December 1, 2009, the ten-day period became fourteen
days.
2
the thirty-day excusable neglect period. 2 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 Cosby 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
2
Because Cosby is incarcerated, the notice of appeal is
considered filed as of August 30, 2009, the date on which she
delivered it to prison officials for mailing. See Fed. R. App.
P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). However,
even utilizing the date the notice of appeal was received in
this court, September 3, 2009, the notice was still filed within
the excusable neglect period. See Fed. R. App. P. 4(d).
3