                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-8541


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MARION AIKEN,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.    Margaret B. Seymour, District
Judge. (5:97-cr-01058-MBS)


Submitted:    March 13, 2009                   Decided:    March 26, 2009


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


Dismissed by unpublished per curiam opinion.


Marion Aiken, Appellant Pro Se.     James Chris Leventis, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Marion      Aiken       seeks    to    appeal    the    district    court’s

order    denying       his   18     U.S.C. § 3582(c)(2)           (2006)    motion     for

reduction of sentence.              In criminal cases, a defendant must file

his notice of appeal within ten days after the entry of judgment

or the order being appealed.                Fed. R. App. P. 4(b)(1)(A)(i); see

United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000)

(holding that a § 3582 proceeding is criminal in nature and ten-

day appeal period applies and collecting cases adopting rule).

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

§ 3582(c)(2) motion on September 3, 2008.                         The ten-day appeal

period expired on September 17, 2008.                    Aiken filed his notice of

appeal, at the earliest, on December 4, 2008, outside of both

the ten-day appeal period and the thirty-day excusable neglect

period, which expired on October 17, 2008. ∗                     Because Aiken failed


     ∗
       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.   See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487
U.S. 266 (1988).


                                              2
to file a timely notice of appeal or to obtain an extension of

the appeal period, we dismiss the appeal.   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.

                                                        DISMISSED




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