US v. Brandon Peguese

Filing 920081103

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4313

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON JAMES PEGUESE, a/k/a Geese, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. G. Ross Anderson, Jr., District Judge. (6:07-cr-00017-GRA-4)

Submitted:

October 14, 2008

Decided:

November 3, 2008

Before TRAXLER, KING, and DUNCAN, Circuit Judges.

Remanded by unpublished per curiam opinion.

D. Craig Brown, Florence, South Carolina, for Appellant. Alan Lance Crick, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Brandon James Peguese seeks to appeal his conviction, pursuant to a guilty plea, on one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine and the resulting sentence of 121 months. 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). 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 2007. district court entered judgment on November 2,

Peguese filed the notice of appeal on March 10, 2008.

Because Peguese is incarcerated, the notice is considered filed as of the date it was properly delivered to prison officials for mailing to the court. 487 U.S. 266 (1988). ten-day period Fed. R. App. P. 4(c)(1); Houston v. Lack, The notice of appeal is dated after the but within the thirty-day excusable

expired

neglect period. Peguese mailing. purpose of gave the

The record is otherwise ambiguous as to when notice of appeal remand to prison case court officials the for

Accordingly, allowing

we the

the

for to

limited this

district

obtain

information from the parties.

If the district court determines

that the notice of appeal was given to prison officials during 2

the

excusable

neglect

period,

the

court

should

proceed

to

determine whether Peguese 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