                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4527


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

AVELINO OSORIO-CORTEZ,

                  Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00373-NCT-1)


Submitted:    January 15, 2009               Decided: January 21, 2009


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


Remanded by unpublished per curiam opinion.


Lisa S. Costner, LISA S. COSTNER, PA, Winston-Salem, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Avelino Osorio-Cortez seeks to appeal his conviction

and     eighty-seven-month      sentence.          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).                 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 judgment on March 19,

2008.    Osorio-Cortez filed the notice of appeal at the latest on

April 28, 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 Osorio-Cortez 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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