United States of America v. Alvarez, 210 F.3d 309, 310 5th Cir. 2000 holding that § 3582 proceeding is criminal…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7216
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT ELTON STOTTS, a/k/a Sugarbear,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:95-cr-00049-RBS-7)
Submitted: December 21, 2006 Decided: January 3, 2007
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Elton Stotts, Appellant Pro Se. Charles Philip Rosenberg,
United States Attorney, Alexandria, Virginia; Kevin Michael
Comstock, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Elton Stotts appeals the district court’s order
denying his motion filed under 18 U.S.C. § 3582(c)(2) (2000). 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 up
to thirty days to file a notice of appeal 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.
The district court entered its order denying the
§ 3582(c)(2) motion on May 8, 2006. The ten-day appeal period
expired on May 22, 2006. See Fed. R. App. P. 26(a)(2). Stotts
filed his notice of appeal, at the earliest, on June 23,
2006—outside both the ten-day appeal period and the thirty-day
excusable neglect period, which expired on June 21, 2006.
Therefore, Stotts’ 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

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legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process.
DISMISSED

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