US v. Aiken, No. 07-6223 (4th Cir. 2007)
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The court issued a subsequent related opinion or order on November 16, 2007.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6223 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JEREMY LUJAN AIKEN, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:04-cr-00092-1) Submitted: June 15, 2007 Decided: June 21, 2007 Before WIDENER, MICHAEL, and KING, Circuit Judges. Remanded by unpublished per curiam opinion. Jeremy Lujan Aiken, Appellant Pro Se. Jill Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jeremy Lujan Aiken seeks to appeal the district court s order denying his motion to compel a Fed. R. Crim. P. 35(b) motion. 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. Little, 392 F.3d 671, 680-81 (4th Cir. 2004) (applying ten-day appeal period to appeal from Rule 35 ruling). 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 on January 9, 2007. Aiken filed the notice of appeal on February 15, 2007, after the ten-day period expired but within the thirty-day excusable neglect period. Because the notice of appeal was filed within the excusable neglect period, we remand the case to the district court for the court to determine whether Aiken has shown excusable neglect or good cause warranting an extension of the ten-day appeal period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED - 2 -
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