                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-6917



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOHNNY BERNARD MILLER, a/k/a Bernard Miller,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-92-101)


Submitted:   April 13, 2005                 Decided:   April 28, 2005


Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Johnny Bernard Miller, Appellant Pro Se. Amy Elizabeth Ray, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Johnny Bernard Miller appeals the district court’s order

denying his motion to reconsider the court’s prior order denying

relief on his motion filed under 18 U.S.C.A. § 3582(c)(2) (West

2000 & Supp. 2004).   In criminal cases, a defendant must file his

notice of appeal within ten days of the entry of judgment.   Fed. R.

App. P. 4(b)(1)(A); 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 and collecting cases

adopting rule).   With or without a motion, the district court may

grant an extension of time to file of up to thirty days upon a

showing of excusable neglect or good cause.       Fed. R. App. P.

4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).

These time periods are mandatory and jurisdictional.         United

States v. Raynor, 939 F.2d 191, 196 (4th Cir. 1991).

          The district court entered its order denying the motion

for reconsideration on January 30, 2004. The ten-day appeal period

expired on February 13, 2004.     See Fed. R. App. P. 26(a)(2).

Miller filed his notice of appeal, at the earliest, on February 25,

2004--outside the ten-day appeal period but within the thirty-day

excusable neglect period.   We remanded the case to the district

court for that court to determine whether Miller could demonstrate

excusable neglect or good cause warranting an extension of the

appeal period. On remand, the district court found that Miller had


                               - 2 -
not established excusable neglect or good cause.         We have reviewed

the record and conclude that the district court did not abuse its

discretion in making this determination.      See Pioneer Inv. Servs.

Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)

(providing   standard   for    excusable     neglect     determination);

Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 532 n.2 (4th

Cir. 1996) (stating standard of review).

          Because the district court declined to extend the appeal

period,   Miller’s   notice   of    appeal   was   not    timely   filed.

Accordingly, we dismiss the appeal for lack of jurisdiction.          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




                                   - 3 -
