                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7221


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

SAUL GARCIA-BENITEZ, a/k/a Mario,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conard, District
Judge. (5:06-cr-00046-GEC-3)


Submitted:    November 19, 2009             Decided:   December 2, 2009


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Remanded by unpublished per curiam opinion.


Saul Garcia-Benitez, Appellant Pro Se.    Donald Ray Wolthuis,
Assistant  United  States  Attorney,  Roanoke,  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Saul    Garcia-Benitez          seeks       to    appeal       the     district

court’s order denying 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    denying       the

motion        for        reduction        of      sentence          on     June        5,     2009.

Garcia-Benitez filed the notice of appeal on June 24, 2009, ∗

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

        ∗
       For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).



                                                  2
Garcia-Benitez    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




                                      3
