US v. Lamont Garrison, No. 08-7532 (4th Cir. 2009)

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The court issued a subsequent related opinion or order on December 10, 2009.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7532 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAMONT HAROLD GARRISON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:98-cr-00132-JCC-13) Submitted: December 24, 2008 Decided: January 26, 2009 Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges. Remanded by unpublished per curiam opinion. Lamont Harold Garrison, Appellant Pro Se. James L. Trump, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lamont Harold Garrison seeks to appeal the district court s order reducing Garrison s sentence motion under 18 U.S.C. § 3582(c)(2) (2006). pursuant to his 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 tenday 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 granting the motion for reduction of sentence on June 2, 2008, and the tenday appeal 2008. period ordinarily would have expired on June 16, See Fed. R. App. P. 26 (providing that intermediate Saturdays, Sundays, and legal holidays are excluded when time period is less than eleven days). Although Garrison did not file a notice of appeal within this ten-day period, he filed a motion to alter or amend the judgment within this time frame. [T]he specifically Federal provide for Rules of motions Criminal for Procedure reconsideration prescribe the time in which they must be filed. 2 do not [or] Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir. 1985). However, the Supreme Court has held that a motion for rehearing or reconsideration extends the time for filing a notice of appeal in a criminal case if the motion is filed before the order sought States v. to be Ibarra, reconsidered 502 U.S. becomes 1, 4 n.2 final. (1991) See United (holding that would-be appellant who files a timely motion for reconsideration from criminal noticing the decided); (same); judgment appeal United United is entitled after States States the v. v. to motion Dieter, Healy, full to period reconsider 429 376 time U.S. U.S. 6, has for been (1976) 77-79 75, 7-8 (1964) (same); United States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993) (same). The district court entered its order Garrison s motion to alter or amend on July 3, 2008. denying Garrison then had ten days, or until July 18, 2008, to timely file his notice of appeal. Garrison s notice of appeal was filed on July 21, 2008, after the expiration of the appeal period but within the thirty-day excusable neglect period. Because the notice of appeal was filed within the excusable neglect period, we remand the case whether to the Garrison warranting an district has shown extension of court for excusable the 3 the court neglect ten-day appeal to or determine good cause period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED 4
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