                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-8066


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JOHN FOGG,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:05-cr-00030-JRS-1)


Submitted:    July 30, 2009                 Decided:   August 3, 2009


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Remanded by unpublished per curiam opinion.


John Fogg, Appellant Pro Se.     Michael Ronald Gill, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              John Fogg seeks to appeal the district court’s orders

denying his motion for reduction of sentence under 18 U.S.C.

§ 3582(c)(2)        (2006)    and     denying      his    subsequent      motion     for

reconsideration.        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   § 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 Fogg’s

motion for reconsideration on July 14, 2008.                       Fogg’s notice of

appeal was received by this court on August 5, 2008, after the

ten-day   period      expired       but     within    the    thirty-day     excusable

neglect period.        See Fed. R. App. P. 4(d) (addressing notice of

appeal mistakenly filed in appellate court).                   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   Fogg       has     shown        excusable      neglect   or     good     cause

warranting     an    extension       of    the   ten-day    appeal      period.      The



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record, as supplemented, will then be returned to this court for

further consideration.

                                                        REMANDED




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