United States v. Dixon ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6247
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AMOS CEDRIC DIXON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Margaret B. Seymour, District Judge.
(CR-98-520, CA-02-2800-6-24)
Submitted: July 22, 2003 Decided: August 25, 2003
Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Amos Cedric Dixon, Appellant Pro Se. Arthur Bradley Parham, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Amos Cedric Dixon, a federal prisoner, appeals the district
court’s order denying his motion for reduction of sentence under 18
U.S.C. § 3582(c)(2) (2000), based upon Amendment 599 to the
Sentencing Guidelines. At the outset, we must determine whether
Dixon timely filed his notice of appeal. In criminal cases, the
defendant must file his notice of appeal within ten days of the
entry of judgment. Fed. R. App. P. 4(b)(1)(A); United States v.
Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). With or without a
motion, the district court may grant an extension of time to file
of up to thirty days upon a showing of excusable neglect or good
cause. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d
351, 353 (4th Cir. 1985). Where excusable neglect is apparent from
the face of record, we need not remand the case to the district
court for such determination. Reyes, 759 F.2d at 354.
The district court entered its order on the criminal docket on
January 2, 2003, see Fed. R. App. P. 4(b)(6); the ten-day appeal
period expired on January 16, 2003. Dixon dated his notice of
appeal January 28, and it was filed on February 6, 2002. Dixon’s
notice of appeal was, therefore, filed beyond the ten-day appeal
period but within the excusable neglect period. Because the
district court’s order denying relief misinforms Dixon that he had
thirty days in which to note his appeal, we find excusable neglect
appears on the face of the record. See Reyes, 759 F.2d at 354; see
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also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 388 (1993) (discussing factors relevant in determining
whether excusable neglect exists); United States v. Clark, 51 F.3d
42, 44 (5th Cir. 1995) (holding “Pioneer controls determinations of
excusable neglect under Rule 4(b)”). Thus, we have jurisdiction
over Dixon’s appeal.
Turning to the merits of Dixon’s appeal, we have reviewed the
record and the district court’s order and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. See Dixon v. United States, Nos. CR-98-520, CA-02-2800-6-24
(D.S.C. Aug. 21, 2002). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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