United States of America v. Shane Mack Lowry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6554
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHANE MACK LOWRY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (1:02-cr-00003; 1:04-cv-00463)
Submitted: October 5, 2007 Decided: November 8, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Shane Mack Lowry, Appellant Pro Se. Michael Lee Keller, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, John Lanier
File, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Shane Mack Lowry seeks to appeal the district court’s
order of May 1, 2006, accepting the recommendation of the
magistrate judge and denying relief on his 18 U.S.C. § 3582 (2000)
motion. Following the district court’s order, Lowry filed a motion
for a certificate of appealability on June 6, 2006. Ten months
later, the district court construed Lowry’s motion as a notice of
appeal. Lowry failed to file his motion within the ten-day period
in Federal Rule of Appellate Procedure 4(b)(1)(A). However, 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. 4(b)(4); United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). Lowry filed
his motion within the thirty-day excusable neglect period.
Accordingly, we remand the case to the district court for the court
to determine whether Lowry 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

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