United States 4th Circuit Court of Appeals Reports


U.S. v. MATTHEWS, 06-7450 (4th Cir. 1-10-2007) UNITED
MATTHEWS, Defendant-Appellant. No. 06-7450. United States
Court of Appeals, Fourth Circuit. Submitted: December 20,
2006. Decided: January 10, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] 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)

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

Remanded by unpublished per curiam opinion.

Barry Lewis Matthews, Appellant Pro Se. Donald Ray
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this


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 copy of
its July 13 order. Matthews filed a notice of appeal on
August 15, 2006,[fn*] 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.


[fn*] 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