United States v. Cotton ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6483
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES ANTHONY COTTON, JR.,
Defendant - Appellant.
No. 04-7585
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES ANTHONY COTTON, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (CR-95-30)
Submitted: February 23, 2005 Decided: March 23, 2005
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles Anthony Cotton, Jr., Appellant Pro Se. Joseph William
Hooge Mott, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Charles Anthony Cotton,
Jr. appeals the district court’s order denying his motion to reduce
his sentence pursuant to 18 U.S.C. § 3582(c) (2000) and its order
denying his motion for reconsideration. In criminal cases, a
defendant must file his notice of appeal within ten days of “the
entry of either the judgment or order being appealed.” Fed. R.
App. P. 4(b)(1)(A); see United States v. Ono, 72 F.3d 101, 102-03
(9th Cir. 1995) (applying ten-day appeal period of Rule 4(b) to
§ 3582(c) motions). 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).
The district court entered the order denying Cotton’s
motion to reduce his sentence on February 5, 2004; the ten-day
appeal period expired on February 20, 2004. Cotton filed his first
notice of appeal on March 8, 2004, beyond the ten-day appeal period
but within the excusable neglect period.* Because the notice of
appeal was filed within the excusable neglect period, we remanded
to the district court to determine whether Cotton could demonstrate
excusable neglect or good cause warranting an extension of the ten-
day appeal period. On remand, the district court denied a pending
*
We have accorded Cotton the date he wrote on the notice of
appeal as the filing date. See Houston v. Lack, 487 U.S. 266(1988).
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motion for reconsideration, and determined that Cotton had not
shown excusable neglect. However, we find we have jurisdiction
over both appeals, because Cotton filed his motion to reconsider
the court’s order denying his motion to reduce his sentence within
the ten-day appeal period, and he timely appealed the district
court’s order denying his motion to reconsider. See United
States v. Ibarra, 502 U.S. 1, 4 n.2 (1991); United States v.
Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993).
Cotton contends the district court erred by denying his
motions to reduce his sentence and for reconsideration. We have
reviewed the record and find no reversible error. Accordingly, we
affirm on the reasoning of the district court. See United
States v. Cotton, No. CR-95-30 (W.D. Va. Feb. 5, 2004 & filed Sept.
7, 2004; entered Sept. 8, 2004). 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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