                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-5143


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TIMMY LEE MCALPIN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:07-cr-00008-RLV-CH-3)


Submitted:    April 16, 2009                  Decided:   May 11, 2009


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Remanded by unpublished per curiam opinion.


Ketanji Brown Jackson, MORRISON & FOERSTER, LLP, Washington,
D.C., for Appellant.    Gretchen C. F. Shappert, United States
Attorney, Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Timmy Lee McAlpin seeks to appeal his conviction and

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    judgment      on     October    17,

2008.     McAlpin filed the notice of appeal on November 13, 2008,

after    the     ten-day    period   expired      but     within    the    thirty-day

excusable       neglect    window.      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 McAlpin

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.         We defer acting on the Government’s motion to

dismiss this appeal until the record is returned to this court.



                                                                             REMANDED




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