US v. Saul Garcia-Benitez, No. 09-7221 (4th Cir. 2009)
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The court issued a subsequent related opinion or order on January 13, 2011.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7221 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAUL GARCIA-BENITEZ, a/k/a Mario, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conard, District Judge. (5:06-cr-00046-GEC-3) Submitted: November 19, 2009 Decided: December 2, 2009 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Remanded by unpublished per curiam opinion. Saul Garcia-Benitez, Appellant Pro Se. Donald Ray Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Saul Garcia-Benitez 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 Fed. R. App. P. 4(b)(1)(A); see United States v. judgment. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (holding that § 3582 proceeding applies). is criminal in nature and ten-day appeal period 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 motion for district court entered reduction of its sentence on order denying June 5, the 2009. Garcia-Benitez filed the notice of appeal on June 24, 2009, after the excusable ten-day neglect period period. expired Because but the within notice the of thirty-day appeal was filed within the excusable neglect period, we remand the case to the district court for the court to determine whether For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988). 2 Garcia-Benitez warranting an has shown extension of excusable the neglect ten-day or appeal good period. cause The record, as supplemented, will then be returned to this court for further consideration. REMANDED 3
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