                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-7599


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOHNNY JOSEPH, a/k/a Joe Sanders,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Cameron McGowan Currie, District
Judge. (4:00-cr-00067-CMC-1)


Submitted:   June 30, 2011                 Decided:   July 12, 2011


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Johnny Joseph, Appellant Pro Se. Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Johnny Joseph appeals from the district court’s order

denying his motion to extend the time to appeal.                  Because our

review of the record shows that Joseph’s motion to extend should

have been construed as a timely notice of appeal, we vacate the

district court’s order.

            On August 18, 2010, Joseph filed a motion to revisit

his conviction.         The district court returned the motion as it

was unsigned.       Joseph then filed a motion to clarify.              In an

order entered September 8, 2010, the district court granted the

motion to clarify but denied the motion to reopen, construing it

as a successive 28 U.S.C.A. § 2255 (West Supp. 2011) motion.

The court also denied a certificate of appealability.

            On October 7, Joseph filed a motion for extension of

time   to   file   an   appeal   and   a   request   for   a   certificate   of

appealability.      Joseph noted that the time limit in criminal

cases applied, and as such, his motion was filed within the

excusable neglect period.         See Fed. R. App. P. 4(b) (providing

notice of appeal must be filed within fourteen days of judgment

but may be extended for another thirty days upon a finding of

excusable neglect).        He asserted that his institution had been

on lockdown from September 12 to September 22, preventing his

timely filing.      He also contended that the district court erred

in recharacterizing his motion without notice.

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             On October 29, the district court denied the motion

for extension of time.        The court noted that, after the lockdown

was ended, Joseph still had ample time under the fourteen day

appeal period in Rule 4(b)(1)(A) to file his notice of appeal.

On November 12, Joseph filed a notice of appeal from the court’s

October 29 order.          In his informal brief, Joseph asserts that

the   district   court      erred    by   ruling   that      he    had     not   shown

sufficient excusable neglect.

             The determination of whether an extension of time was

even required depends on whether Joseph’s motion to reopen was

criminal or civil in nature, as the former provides a defendant

with a fourteen-day period to file a notice of appeal, while the

latter has a sixty-day appeal period.                   See Fed. R. App. P.

4(a)(1)(B),    4(b)(1)(A).          Joseph’s   motion     to      extend    time   was

filed twenty-nine days after the district court’s order denying

his motion to reopen.

             While both Joseph and the district court appear to

believe that the criminal appeal period applies, we conclude

that,   in   fact,   the    civil    appeal    period   is     applicable.         The

district court construed Joseph’s motion as a successive § 2255

motion and counseled Joseph that a certificate of appealability

was required.        Moreover, the district court’s construction was

correct, as there is no criminal rule of procedure that permits

a motion to reopen a sentence nearly a decade after conviction.

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              Thus, we conclude that Joseph’s motion for extension

of time should have been construed as a notice of appeal, as no

extension was necessary and Joseph had clearly evinced a desire

to appeal.       If so construed, Joseph’s appeal was clearly timely

filed within the sixty day appeal period.                 As such, we vacate

the   order     of   the   district   court   denying     Joseph’s     motion   to

extend and remand with instructions to construe Joseph’s motion

to extend as a timely appeal of the denial of his motion to

reopen.       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.

                                                          VACATED AND REMANDED




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