United States v. Pabellon ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7912
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SONJI PRINCE PABELLON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-98-1169-HMH)
Submitted: June 26, 2006 Decided: July 17, 2006
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Sonji Prince Pabellon, Appellant Pro Se. Elizabeth Jean Howard,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sonji Prince Pabellon seeks to appeal the district
court’s orders denying her motion for reduction of sentence under
18 U.S.C.A. § 3582 (West 2000 & Supp. 2005) and denying her motion
for reconsideration. 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 October 11, 2005, and the ten-day
appeal period ordinarily would have expired on October 25, 2005.
See Fed. R. App. P. 26 (providing that “intermediate Saturdays,
Sundays, and legal holidays” are excluded when the time period is
less than eleven days). Although Pabellon did not file a notice of
appeal within this ten-day period, she filed a motion for
reconsideration on October 19, 2005.
Although “the Federal Rules of Criminal Procedure do not
specifically provide for motions for reconsideration and prescribe
the time in which they must be filed,” Nilson Van & Storage Co. v.
- 2 -
Marsh, 755 F.2d 362, 364 (4th Cir. 1985), the Supreme Court has
held that a motion for rehearing or reconsideration extends the
time for filing a notice of appeal in a criminal case if the motion
is filed before the order sought to be reconsidered becomes final.
See United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (holding that
would-be appellants who file a timely motion for reconsideration
from a criminal judgment are entitled to the full time period for
noticing the appeal after the motion to reconsider has been
decided); United States v. Dieter, 429 U.S. 6, 7-8 (1976) (same);
United States v. Healy, 376 U.S. 75, 77-79 (1964) (same); United
States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993) (same).
The district court entered its oral order denying
Pabellon’s motion to reconsider on October 25, 2005; she then had
ten days or until November 8, 2005, to timely file her notice of
appeal. Pabellon’s notice of appeal was filed on November 16,
2005, after the expiration of the 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 Pabellon
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 -