                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-8362


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CLAUDIO OTERO, JR., a/k/a Bill,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:99-cr-70054-nkm-6)


Submitted:    April 28, 2009                  Decided:   May 12, 2009


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Remanded by unpublished per curiam opinion.


Claudio Otero, Jr., Appellant Pro Se.    Anthony Paul Giorno,
Assistant  United  States  Attorney, Roanoke,   Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Claudio    Otero,     Jr.,    seeks    to   appeal    the   district

court’s order denying his motion for reduction of sentence filed

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 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 September 15, 2008, and the

ten-day appeal period expired on September 29, 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).      The thirty-day excusable neglect period expired

on October 29, 2008.

          When a criminal defendant’s notice of appeal is filed

more than ten days following judgment but within the thirty-day

excusable neglect period, we generally remand so the district

court can assess whether there has been good cause or excusable

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neglect    to     excuse    the   late       filing.         Because   Otero   is

incarcerated, the notice of appeal is considered filed as of the

date it was properly delivered to prison officials for mailing

to the court.          Fed. R. App. P. 4(c)(1); Houston v. Lack, 487

U.S.   266,     276    (1988).    Otero’s     notice    of    appeal   was   dated

October 29, 2008, the last day of the excusable neglect period.

However,   it    was    post-marked   October     30,   2008,    and   was   date-

stamped received in the district court on November 4, 2008.

              Because it is unclear when Otero gave his notice of

appeal to prison officials for mailing, we remand the case to

the district court for the court to determine whether Otero’s

notice of appeal was filed within the excusable neglect period

and, if so, whether Otero 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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