United States of America, Plaintiff-appellee, v. Harold Romig Griffith, Defendant-appellant, 833 F.2d 1006 (4th Cir. 1987)

Harold Romig Griffith appeals the district court's denial of his motion for reduction of sentence under Fed. R. Crim. P. 35(b). A notice of appeal from a district court's denial of a Fed. R. Crim. P. 35(b) motion is governed by Fed. R. App. P. 4(b) and must be filed no later than 10 days after the motion is denied. See United States v. Breit, 754 F.2d 526, 528-29 (4th Cir. 1985); United States v. Guiterrez, 556 F.2d 1217, 1217 (5th Cir. 1977). Griffith filed his notice of appeal twenty-one days after the motion was denied, and it was therefore untimely.

Because the notice of appeal was filed during the thirty-day period in which, under Fed. R. App. P. 4(b), the district court may extend the time for filing the notice of appeal, Griffith should have the opportunity to demonstrate excusable neglect. See Guiterrez, 556 F.2d at 1218. Cf. United States v. Reyes, 759 F.2d 351, 353 (4th Cir.), cert. denied, 54 U.S.L.W. 3226 (U.S. Oct. 7, 1985) (No. 85-5132). We therefore remand this case to allow the district court to determine whether excusable neglect entitles Griffith to an extension of time in which to appeal. We dispense with oral argument because it would not significantly aid the decisional process.

REMANDED.