United States v. Aiken , 354 F. App'x 767 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7624
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY LUJAN AIKEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:04-cr-00092-LHT-1)
Submitted: November 19, 2009 Decided: December 4, 2009
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Jeremy Lujan Aiken, 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Unpublished opinions are not binding precedent in this circuit.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:
Jeremy Lujan Aiken 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 § 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 on July 31, 2009.
Aiken’s notice of appeal was deposited in the prison’s internal
mail system on August 19, 2009, see Fed. R. App. P. 4(c);
Houston v. Lack, 487 U.S. 266, 276 (1988), a date beyond the
ten-day appeal period 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 Aiken has shown
excusable neglect or good cause warranting an extension of the
ten-day appeal period.
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The record, as supplemented, will then be returned to this court
for further consideration.
REMANDED
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