United States of America v. Marion Aiken

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8541
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARION AIKEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:97-cr-01058-MBS)
Submitted: March 13, 2009 Decided: March 26, 2009
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Marion Aiken, Appellant Pro Se. James Chris Leventis, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marion Aiken seeks to appeal the district court’s
order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for
reduction of sentence. In criminal cases, a defendant must file
his notice of appeal within ten days after the entry of judgment
or the order being appealed. Fed. R. App. P. 4(b)(1)(A)(i); see
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000)
(holding that a § 3582 proceeding is criminal in nature and ten-
day appeal period applies and collecting cases adopting rule).
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 the
§ 3582(c)(2) motion on September 3, 2008. The ten-day appeal
period expired on September 17, 2008. Aiken filed his notice of
appeal, at the earliest, on December 4, 2008, outside of both
the ten-day appeal period and the thirty-day excusable neglect
period, which expired on October 17, 2008.∗ Because Aiken failed
∗ For the purpose of this appeal, we assume that the date
appearing on 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)(1); Houston v. Lack, 487
U.S. 266 (1988).
2

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3
to file a timely notice of appeal or to obtain an 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

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