US v. Lorenzo Butts, Jr.

Filing 402754973

OPINION/ORDER DIRECTING LIMITED REMAND filed by DGM, DWS and CHH [4CCA retains jurisdiction]. Originating case number: 2:00-cr-00067-JBF-1 Copies to all parties and the district court/agency. [998318489] [09-7803]

Case: 09-7803

Document: 12

Date Filed: 04/14/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7803 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LORENZO BUTTS, JR., Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:00-cr-00067-JBF-1) Submitted: March 15, 2010 SHEDD, Circuit Decided: Judges, and April 14, 2010 Senior

Before MOTZ and Circuit Judge.

HAMILTON,

Remanded by unpublished per curiam opinion. Lorenzo Butts, Jr., Appellant Pro Se. Kevin Michael Comstock, Joseph Evan DePadilla, Assistant United States Attorneys, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Case: 09-7803

Document: 12

Date Filed: 04/14/2010

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PER CURIAM: Lorenzo Butts, Jr., 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); 1 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 Butts

motion for reduction of sentence on August 14, 2009.

filed the notice of appeal on September 11, 2009, 2 after the tenday period expired but within the thirty-day excusable neglect

Rule 4(b)(1)(A) was amended effective December 1, 2009, to provide a period of fourteen calendar days to file a notice of appeal. This amendment does not affect the timeliness of Butts's notice of appeal. 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
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Case: 09-7803

Document: 12

Date Filed: 04/14/2010

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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 Butts 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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