UNITED STATES of America, Plaintiff-Appellee, v. Luther T. GOLDSMITH, Defendant-Appellant, 169 F. App'x 159

PER CURIAM: Luther Thomas Goldsmith seeks to appeal the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582 (2000). In criminal cases, the 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 § 3582 proceeding is criminal in nature and ten-day appeal period applies and collecting cases).

In criminal appeals, the district court may extend the time in which to note an appeal up to thirty days upon a finding of excusable neglect or good cause, with or without a motion or notice. 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 its docket on July 18, 2005, and the ten-day appeal period expired on August 1, 2005. Goldsmith filed his notice of appeal after the ten-day appeal period expired but within the thirty-day excusable neglect period.

Because Goldsmith’s notice of appeal was filed within the excusable neglect period, we remand the case to the district court for that court to determine whether Goldsmith 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. 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.

REMANDED Goldsmith asserted in his notice of appeal that he did not receive the district court’s order until thirty days after it was entered.