US v. Avelino Osorio-Cortez

Filing 920090121

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4527

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AVELINO OSORIO-CORTEZ, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:06-cr-00373-NCT-1)

Submitted:

January 15, 2009

Decided: January 21, 2009

Before MOTZ and Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Remanded by unpublished per curiam opinion.

Lisa S. Costner, LISA S. COSTNER, PA, Winston-Salem, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Avelino Osorio-Cortez seeks to appeal his conviction and eighty-seven-month sentence. 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 district court entered its judgment on March 19, 2008. Osorio-Cortez filed the notice of appeal at the latest on

April 28, 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 Osorio-Cortez 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

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