                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-8048


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KEVIN RODNEY SHELTON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:05-cr-00079-WDK-JEB-1)


Submitted:    February 26, 2009             Decided:   March 6, 2009


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kevin Rodney Shelton, Appellant Pro Se.          Sherrie Scott
Capotosto, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Kevin    Rodney    Shelton       seeks    to   appeal    the    district

court’s order denying his motion for reduction of sentence under

18 U.S.C. § 3582 (2006).            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); see 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).      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 its order denying Shelton’s

motion for reduction of sentence on July 11, 2008.                         The notice

of appeal was filed on September 9, 2008. *                        Because Shelton

failed   to    file    a   timely     notice     of    appeal   or    to     obtain   an

     *
      For the purpose of this appeal, we assume the date
appearing on the envelope containing the notice of appeal is the
earliest date it could have been properly delivered to prison
officials for mailing to the court.   See Fed. R. App. P. 4(c);
Houston v. Lack, 487 U.S. 266 (1988).        The certificate of
service did not contain a proper date that was attested to by a
declaration under penalty of perjury or a notarized statement,
and the evidence of the date of mailing and receipt by the
district court suggests a more accurate date of delivery to the
prison mailbox.  See Fed. R. App. P. 4(c)(1); 28 U.S.C. § 1746
(2006).



                                           2
extension   of     the   appeal   period,   we   dismiss   the     appeal.      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
