                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-7450



UNITED STATES OF AMERICA,

                                               Plaintiff – Appellee,

          versus


BARRY LEWIS MATTHEWS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. James C. Turk, Senior District
Judge. (6:94-cr-70077-jct)


Submitted:   December 20, 2006            Decided:   January 10, 2007


Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.


Remanded by unpublished per curiam opinion.


Barry Lewis Matthews, Appellant Pro Se. Donald Ray Wolthuis,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Barry Lewis Matthews seeks to appeal the district court’s

order denying his motion to correct sentence and modify judgment

under 18 U.S.C. § 3582 (2000).     In criminal cases, the 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, citing

United States v. Petty, 82 F.3d 809, 810 (8th Cir. 1996), and

United States v. Ono, 72 F.3d 101, 102-03 (9th Cir. 1995)).     With

or without a motion, the district court may grant an extension of

time to file a notice of appeal 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).

            The district court’s order was entered on its docket on

July 14, 2006, see Fed. R. App. P. 4(b)(6), and the ten-day appeal

period expired on July 28, 2006.   See Fed. R. App. P. 26 (providing

that “intermediate Saturdays, Sundays, and legal holidays” are

excluded when the time period is less than eleven days).   On August

4, 2006, the district court received a letter from Matthews in

which he inquired as to the status of his § 3582 motion.        Upon

receipt of this letter, the district court mailed Matthews another




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copy of its July 13 order.   Matthews filed a notice of appeal on

August 15, 2006,* within the thirty-day excusable neglect period.

          Because Matthews filed his notice of appeal within the

excusable neglect period, we remand the case to the district court

for the court to determine whether Matthews demonstrated excusable

neglect or good cause warranting an extension of the ten-day appeal

period.   The record as supplemented with the district court’s

findings on remand will then be returned to this court.         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.

                                                          REMANDED




     *
      Although Matthews’ notice of appeal was stamped as filed by
the district court on August 17, 2006, we deem it filed as of
August 15, 2006, the date he gave it to prison officials for
mailing. Houston v. Lack, 487 U.S. 266, 276 (1988).

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