                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4718



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


NIKKI NICOLE THOMAS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:07-cr-00094-HMH-7)


Submitted:   September 23, 2008           Decided:   October 20, 2008


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Remanded by unpublished per curiam opinion.


Rodney Wade Richey, Greenville, South Carolina, for Appellant.
David Calhoun Stephens, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Nikki Thomas seeks to appeal her conviction and sentence.

The government has moved to dismiss the appeal as untimely.              In

criminal cases, the defendant must file a notice of appeal within

ten days of the entry of judgment.          Fed. R. App. P. 4(b)(1)(A).

The district court may, upon a showing of excusable neglect, with

or without a motion for extension of time, extend the time for

filing a notice of appeal by thirty days.          Fed. R. App. P. 4(b);

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

            In this case, the district court’s judgment was entered

on March 20, 2008.     On July 10, 2008, the district court received

an undated letter from Thomas in which she stated her intent to

appeal.    Under Houston v. Lack, 487 U.S. 266 (1988), the notice of

appeal is considered filed when it is given to prison officials for

mailing.    Because it is not clear from the record whether Thomas’

appeal was timely noted, we remand the case to the district court

for a factual finding of when Thomas’ notice of appeal was given to

prison officials for mailing. Further, if the district court finds

that the notice of appeal was given to prison officials within the

excusable neglect period, the court should also determine whether

there was excusable neglect justifying Thomas’ delay in noting an

appeal.    See Reyes, 759 F.2d at 353-54 (appeal may be remanded for

determination    of   excusable   neglect   when   such   neglect   is   not

apparent from the face of the record; motion for extension of time


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to appeal not prerequisite to district court’s excusable neglect

determination    in   direct   criminal   appeal).   The   record,   as

supplemented, will then be returned to this court for further

consideration.

                                                              REMANDED




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