UNITED STATES of America, Plaintiff-Appellee, v. Johnny Bernard MILLER, a/k/a Bernard Miller, Defendant-Appellant, 126 F. App'x 638

PER CURIAM. Johnny Bernard Miller appeals the district court’s order denying his motion to reconsider the court’s prior order denying relief on his motion filed under 18 U.S.C.A. § 3582(c)(2) (West 2000 & Supp.2004). In criminal cases, a defendant must file his notice of appeal within ten days of the entry of judgment. Fed. R.App. P. 4(b)(1)(A); 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 and collecting cases adopting rule).

With or without a motion, the district court may grant an extension of time to file of up to thirty days upon a showing of excusable neglect or good cause. Fed. R.App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir.1985). These time periods are mandatory and jurisdictional. United States v. Raynor, 939 F.2d 191, 196 (4th Cir.1991). The district court entered its order denying the motion for reconsideration on January 30, 2004. The ten-day appeal period expired on February 13, 2004. See Fed. R.App. P. 26(a)(2).

Miller filed his notice of appeal, at the earliest, on February 25, 2004 — outside the ten-day appeal period but within the thirty-day excusable neglect period. We remanded the case to the district court for that court to determine whether Miller could demonstrate excusable neglect or good cause warranting an extension of the appeal period. On remand, the district court found that Miller had not established excusable neglect or good cause. We have reviewed the record and conclude that the district court did not abuse its discretion in making this determination. See Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. P’ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (providing standard for excusable neglect determination); Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 532 n. 2 (4th Cir.1996) (stating standard of review). Because the district court declined to extend the appeal period, Miller’s notice of appeal was not timely filed. Accordingly, we dismiss the appeal for lack of jurisdiction. 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