United States of America v. Kevin Rodney Shelton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN RODNEY SHELTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:05-cr-00079-WDK-JEB-1)
Submitted: February 26, 2009 Decided: March 6, 2009
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kevin Rodney Shelton, Appellant Pro Se. Sherrie Scott
Capotosto, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

PER CURIAM:
Kevin Rodney Shelton seeks to appeal the district
court’s order denying his motion for reduction of sentence under
18 U.S.C. § 3582 (2006). 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 ten-day 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 denying Shelton’s
motion for reduction of sentence on July 11, 2008. The notice
of appeal was filed on September 9, 2008.* Because Shelton
failed to file a timely notice of appeal or to obtain an
* For the purpose of this appeal, we assume the date
appearing on the envelope containing the notice of appeal is the
earliest date it could have been properly delivered to prison
officials for mailing to the court. See Fed. R. App. P. 4(c);
Houston v. Lack, 487 U.S. 266 (1988). The certificate of
service did not contain a proper date that was attested to by a
declaration under penalty of perjury or a notarized statement,
and the evidence of the date of mailing and receipt by the
district court suggests a more accurate date of delivery to the
prison mailbox. See Fed. R. App. P. 4(c)(1); 28 U.S.C. § 1746
(2006).
2

-- 2 of 3 --

3
extension of the appeal period, we dismiss the appeal. 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

-- 3 of 3 --