US v. Lashon Gaither

Filing 920090715

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6612

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LASHON MAURICE GAITHER, a/k/a Sld Dft 5:05CR9-10-V, a/k/a Morie, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-10)

Submitted:

June 29, 2009

Decided:

July 15, 2009

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Remanded by unpublished per curiam opinion.

Lashon Maurice Gaither, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Lashon Maurice Gaither seeks to appeal the district court's order denying his motion for reduction of sentence under 18 U.S.C. § 3582 (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 applies). is criminal in nature and ten-day appeal period

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 February 27, 2009.

Gaither

filed the notice of appeal on March 27, 2009, after the ten-day period expired but before the expiration the of the of thirty-day appeal was

excusable

neglect

period.

Because

notice

filed within the excusable neglect period, we remand the case to the district court for the court to determine whether Gaither has shown excusable of the neglect or good cause warranting The record, an as

extension

ten-day

appeal

period.

See Houston v. Lack, 487 U.S. 266, 276 (1988).

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

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