US v. Jeannie Cosby
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff Appellee, v. JEANNIE LARGENT COSBY, Defendant Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:07-cr-00033-MR-3)
December 15, 2009
December 22, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Remanded by unpublished per curiam opinion.
Jeannie Largent Cosby, 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Unpublished opinions are not binding precedent in this circuit.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: Jeannie Largent Cosby seeks to appeal the district
court's order denying her motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). After entry of the district
court's order, Cosby had ten days to file her notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i) (2008) (amended Dec. 1, 2009) 1 ; see United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (holding that a § 3582(c)(2) proceeding is criminal in nature and ten-day 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 denying the
motion for reduction of sentence on July 31, 2009. appeal period expired on August 14, 2009. 26(a)(2) (2008) (amended Dec. 1, 2009).
See Fed. R. App. P. The thirty-day See Cosby
excusable neglect period expired on September 14, 2009. Fed. R. App. P. 26(a)(3) (2008) (amended Dec. 1, 2009).
filed her notice of appeal, at the earliest, on August 30, 2009, after the expiration of the ten-day appeal period, but within
On December 1, 2009, the ten-day period became fourteen
the thirty-day excusable neglect period. 2
Because the notice of
appeal was filed within the excusable neglect period, we remand the case to Cosby an the district shown of court for the court or to determine cause The
record, as supplemented, will then be returned to this court for further consideration. REMANDED
Because Cosby is incarcerated, the notice of appeal is considered filed as of August 30, 2009, the date on which she delivered it to prison officials for mailing. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). However, even utilizing the date the notice of appeal was received in this court, September 3, 2009, the notice was still filed within the excusable neglect period. See Fed. R. App. P. 4(d).
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