                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-6402


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

HARVEY LEE MOXLEY, a/k/a Sandy,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.      Richard L.
Voorhees, District Judge. (5:98-cr-00068-RLV-8)


Submitted:    August 28, 2009                 Decided:   September 9, 2009


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


Remanded by unpublished per curiam opinion.


Harvey Lee Moxley, Appellant Pro Se.       Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina;
Robert Jack Higdon, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Harvey Lee Moxley seeks to appeal the district court’s

order granting his motion for reduction of sentence under 18

U.S.C. § 3582 (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    granting      the

motion for reduction of sentence on February 6, 2009.                           The ten-

day appeal period expired on February 23, 2009.                          See Fed. R.

App.    P.   26(a)(2)     (providing       “intermediate       Saturdays,       Sundays,

and legal holidays” are excluded when time period is less than

eleven days).        The excusable neglect period expired on March 25,

2009.

              Moxley’s notice of appeal includes a certificate of

service      stating    that    he    placed    the   notice    of     appeal    in   the

prison legal mail system on February 20, 2009, within the ten-

day appeal period.          However, Moxley mailed his notice of appeal

                                            2
with a cover letter dated February 25, 2009, a date outside the

ten-day    appeal   period,       but   within   the   thirty-day      excusable

neglect period.         See Fed. R. App. P. 4(c)(1); Houston v. Lack,

487 U.S. 266, 276 (1988).           Because it is unclear whether Moxley

timely    filed   his    notice    of   appeal   or    filed   it   within     the

excusable neglect period, we remand the case to the district

court for the court to determine whether Moxley timely filed his

notice of appeal and, if not, whether Moxley 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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