US v. Avelino Osorio-Cortez
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
January 15, 2009
Decided: January 21, 2009
Before MOTZ and Circuit Judge.
Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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