                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-8469


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

SHAWN RHONDU SMITHWICK,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    James C. Fox, Senior
District Judge. (5:06-cr-00121-F-1; 5:08-cv-00538-F)


Submitted:    July 7, 2009                       Decided:    July 20, 2009


Before TRAXLER,     Chief    Judge,   and   NIEMEYER   and   KING,   Circuit
Judges.


Remanded by unpublished per curiam opinion.


Shawn Rhondu Smithwick, Appellant Pro Se. Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Shawn Rhondu Smithwick 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, the defendant

must file a notice of appeal within ten days of the entry of the

order being appealed.             Fed. R. App. P. 4(b)(1)(A); United States

v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (holding that §

3582(c)(2) proceeding is criminal in nature and ten-day appeal

period applies).         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       entered      its      order        denying

Smithwick’s § 3582(c)(2) motion on October 17, 2008.                           The notice

of appeal was filed November 20, 2008, after the ten-day period

expired   but       within    the    thirty-day         excusable    neglect         period.

Because   the       notice   of     appeal    was      filed   within    the    excusable

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

limited   purpose       of    determining         whether      Smithwick       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.

                                                                                 REMANDED

                                              2
