                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4377



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RICCARDO MERCELLUS DAVEY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, District
Judge. (CR-02-201)


Submitted:   July 8, 2003                  Decided:   July 18, 2003


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Remanded by unpublished per curiam opinion.


Derrick George Arjune, DERRICK ARJUNE & ASSOCIATES, P.C., Brooklyn,
New York, for Appellant. Christine Witcover Dean, Assistant United
States Attorney, Anne Margaret Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      Riccardo Mercellus Davey seeks to appeal his conviction and

sentence. In criminal cases, the defendant must file his notice of

appeal within ten days of the entry of judgment.         Fed. R. App. P.

4(b)(1)(A). With or without a motion, the district court may grant

an extension of time to file of up to thirty days upon a showing of

excusable neglect or good cause.          Fed. R. App. P. 4(b)(4); United

States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).

      The district court entered its judgment on March 24, 2002; the

ten-day appeal period expired on April 7, 2003.          Davey filed his

notice of appeal on April 28, 2003, 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 deny the Government’s motion to dismiss without prejudice and

remand the case to the district court for the court to determine

whether Davey 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.    We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.




                                                                 REMANDED


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