United States v. Talley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6929
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KANTON TALLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:05-cr-00207-1)
Submitted: March 11, 2009 Decided: March 27, 2009
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kanton Talley, Appellant Pro Se. John J. Frail, Assistant
United States Attorney, Charleston, West Virginia, Richard
Gregory McVey, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kanton Talley seeks to appeal the district court’s
order granting him a reduction in his sentence pursuant to 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 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 granting Talley’s
sentence reduction on May 2, 2008. The notice of appeal was
filed, at earliest, on May 20, 2008. * Because Talley failed to
file a timely notice of appeal or obtain an extension of the
appeal period, we remanded this case to the district court for
the court to determine whether Talley could demonstrate
excusable neglect or good cause to justify extending the ten-day
appeal period. In accordance with our remand order, the
*
Because Talley was incarcerated and not represented by
counsel, this filing date is determined pursuant to Houston v.
Lack, 487 U.S. 266, 276 (1988).
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district court received argument and evidence pertaining to the
issue and determined that Talley had failed to make the
requisite showing.
We have thoroughly reviewed the record and agree that
Talley has failed to demonstrate good cause or excusable neglect
to justify a relaxation of the ten-day appeal period called for
in Fed. R. App. P. 4(b)(1)(A). See generally Bowles v. Russell,
551 U.S. 205, __, 127 S. Ct. 2360, 2363-66 (2007); United States
v. Mitchell, 518 F.3d 740, 750 (10th Cir. 2008). Accordingly,
we dismiss the appeal. 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.
DISMISSED
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