US v. Saul Garcia-Benitez

Filing 920091202

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7221

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAUL GARCIA-BENITEZ, a/k/a Mario, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conard, District Judge. (5:06-cr-00046-GEC-3)

Submitted:

November 19, 2009

Decided:

December 2, 2009

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Remanded by unpublished per curiam opinion.

Saul Garcia-Benitez, Appellant Pro Se. Donald Ray Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Saul Garcia-Benitez 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 motion for district reduction court of entered sentence its on order June denying 5, the 2009.

Garcia-Benitez filed the notice of appeal on June 24, 2009, after the ten-day neglect period period. expired Because but the within notice the of thirty-day appeal was

excusable

filed within the excusable neglect period, we remand the case to the district

court

for

the

court

to

determine

whether

For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).

2

Garcia-Benitez warranting an

has

shown of

excusable the

neglect

or

good period.

cause The

extension

ten-day

appeal

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

3