United States v. Moore

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM HENRY MOORE, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (4:00-cr-00016-JBF-2)
Submitted: October 9, 2008 Decided: November 7, 2008
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Remanded by unpublished per curiam opinion.
William Henry Moore, Jr., Appellant Pro Se. Scott W. Putney,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Henry Moore, Jr., seeks to appeal the district
court’s order denying his motion for reduction of sentence under
18 U.S.C.A. § 3582 (West 2000 & Supp. 2008). 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 April 25, 2008. Moore filed
the notice of appeal on May 13, 2008, * after the ten-day period
expired 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 Moore has shown excusable neglect or
*
For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266(1988).
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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
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