                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-6929


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KANTON TALLEY,

                  Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:05-cr-00207-1)


Submitted:    October 21, 2008              Decided:   October 27, 2008


Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.


Remanded by unpublished per curiam opinion.


Kanton Talley, Appellant Pro Se.   John J. Frail, Assistant
United States Attorney, Charleston, West Virginia, Richard
Gregory McVey, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Kanton    Talley   seeks       to     appeal       the    district   court’s

order granting his motion for reduction of sentence under 18

U.S.C. § 3582(c)(2) (2000).                     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    granting      the

motion for reduction of sentence on May 2, 2008.                                Talley filed

the notice of appeal, at earliest, on May 20, 2008, * after the

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

neglect 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          Talley   has    shown

excusable neglect or good cause warranting an extension of the

        *
       Because Talley was not then represented by counsel, this
filing date is determined pursuant to Houston v. Lack, 487 U.S.
266, 276 (1988).



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ten-day appeal period.   The record, as supplemented, will then

be returned to this court for further consideration.        We deny

Talley’s motion for the appointment of counsel on appeal.

                                                            REMANDED




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