United States of America v. Howard J. Beard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7644
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD J. BEARD,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:02-cr-30020-sgw-4)
Submitted: January 13, 2009 Decided: January 16, 2009
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Howard J. Beard, Appellant Pro Se. Sharon Burnham, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Howard J. Beard seeks to appeal the district court’s
order denying his motion for reconsideration of the order
granting 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).
The district court entered its order granting Beard’s
motion to reduce his sentence on April 21, 2008. The ten-day
appeal period ordinarily would have expired on May 5, 2008. See
Fed. R. App. P. 26(a)(2) (providing “intermediate Saturdays,
Sundays, and legal holidays” are excluded when time period is
less than eleven days). Beard did not file his motion for
reconsideration until July 21, 2008.
“[T]he Federal Rules of Criminal Procedure do not
specifically provide for motions for reconsideration and
prescribe the time in which they must be filed.” Nilson Van &
Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir. 1985).
However, the Supreme Court has held that a motion for rehearing
or reconsideration extends the time for filing a notice of
appeal in a criminal case if the motion is filed before the
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order sought to be reconsidered becomes final. See United
States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (holding that would-
be appellants who file a timely motion for reconsideration from
a criminal judgment are entitled to a full time period for
noticing the appeal after the motion for reconsideration has
been decided); United States v. Dieter, 429 U.S. 6, 7-8 (1976)
(same); United States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir.
1993) (same). Because Beard did not timely file the motion to
reconsider, the district court should have denied the motion as
untimely. We therefore affirm the denial of the motion for
reconsideration on the grounds that the motion was untimely
filed.
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.
AFFIRMED

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