United States v. Gray ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2009
No. 08-10563
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GREGORY VIDAL GRAY, also known as G
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:02-CR-94-12
Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
Gregory Vidal Gray, federal prisoner # 09487-031, appeals the district
court’s denial of his 18 U.S.C. § 3582 motion to reduce his sentence based on
recent amendments to the United States Sentencing Guidelines. The
Government argues that Gray’s appeal should be dismissed as untimely.
Gray’s notice of appeal was due 10 days after the district court entered its
order denying his motion. See United States v. Alvarez, 210 F.3d 309, 310 (5th
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-10563
Cir. 2000); F ED. R. A PP. P. 4(b)(1)(A)(i). The district court’s denial was entered
on April 16, 2008; therefore, Gray had 10 days, or until April 30, 2008, to file a
timely notice of appeal. See F ED. R. A PP. P. 26(a)(2). Gray’s notice of appeal was
deposited for mailing, and is considered filed, on June 2, 2008. See
F ED. R. A PP. P. 4(c)(1).
A district court may extend the time for filing a notice of appeal for an
additional 30 days upon a finding of good cause or excusable neglect.
F ED. R. A PP. P. 4(b)(4). In criminal cases, the filing of a notice of appeal within
this additional period is usually treated “as a motion for a determination as to
whether excusable neglect entitled a defendant to an extension of time to
appeal.” United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984) (internal
quotation marks omitted). However, in the instant case, the additional 30 day
period ended on May 30, 2008.
As the Government has properly challenged the timeliness of Gray’s notice
of appeal, we must dismiss the appeal as untimely filed. See United States v.
Sealed Appellant, 304 F. App’x 282, 284 (5th Cir. 2008); Burnley v. City of San
Antonio, 470 F.3d 189, 192 n.1 (5th Cir. 2006).
APPEAL DISMISSED.
2