United States v. Shelton

Opinion

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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