US v. Lamont Garrison

Filing 920090126

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7532

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAMONT HAROLD GARRISON, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:98-cr-00132-JCC-13)

Submitted:

December 24, 2008

Decided:

January 26, 2009

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Remanded by unpublished per curiam opinion.

Lamont Harold Garrison, Appellant Pro Se. James L. Trump, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Lamont Harold Garrison seeks to appeal the district court's order reducing Garrison's sentence pursuant to his

motion under 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 tenday 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 the

motion for reduction of sentence on June 2, 2008, and the tenday appeal period ordinarily would have expired on June 16,

2008.

See Fed. R. App. P. 26 (providing that "intermediate

Saturdays, Sundays, and legal holidays" are excluded when time period is less than eleven days). Although Garrison did not

file a notice of appeal within this ten-day period, he filed a motion to alter or amend the judgment within this time frame. "[T]he specifically Federal for Rules of Criminal for Procedure do not [or]

provide

motions

reconsideration

prescribe the time in which they must be filed." 2

Nilson Van &

Storage

Co.

v.

Marsh,

755

F.2d

362,

364

(4th

Cir.

1985).

However, the Supreme Court has held that a motion for rehearing or reconsideration extends the time for filing a notice of

appeal in a criminal case if the motion is filed before the order States sought v. to be reconsidered 502 U.S. 1, becomes 4 n.2 final. (1991) See United that

Ibarra,

(holding

would-be appellant who files a timely motion for reconsideration from criminal the judgment appeal is entitled the to full to 429 time period has for been

noticing decided); (same);

after

motion

reconsider U.S. 75, 6,

United

States v.

v.

Dieter, 376

7-8

(1976) (1964)

United

States

Healy,

U.S.

77-79

(same); United States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993) (same). The district court entered its order denying Garrison

Garrison's motion to alter or amend on July 3, 2008.

then had ten days, or until July 18, 2008, to timely file his notice of appeal. Garrison's notice of appeal was filed on July

21, 2008, after the expiration of the appeal period 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 has shown of court for the court to determine cause The

whether

Garrison an

excusable the

neglect appeal

or

good

warranting

extension

ten-day

period.

3

record, as supplemented, will then be returned to this court for further consideration. REMANDED

4