UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4216

NELSON HINES,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CR-93-205)

Submitted: July 21, 1998

Decided: October 26, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

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Remanded by unpublished per curiam opinion.

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COUNSEL

Barbara Gold, Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Bonnie S. Greenberg, Assistant United

States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Nelson Hines was sentenced in 1993 for drug offenses and for

using or carrying a firearm in connection with a drug offense in violation of 18 U.S.C.A. § 924(c) (West Supp. 1998). After the Supreme

Court's decision in Bailey v. United States, 516 U.S. 137 (1995),

Hines filed a motion to correct sentence pursuant to 28 U.S.C.A.

§ 2255 (West 1994 & Supp. 1998), seeking vacation of his § 924(c)

conviction. The district court vacated the § 924(c) count but refused

the government's request to resentence Hines on the drug counts. The

government appealed and we remanded the case for resentencing. See

United States v. Hines, No. 96-7465 (4th Cir. Apr. 8, 1997) (unpublished). Hines was resentenced to a term of 168 months imprisonment. The judgment and commitment order was entered on February

5, 1998. Hines filed a notice of appeal on March 9, 1998, after the

ten-day appeal period had expired. He did not request an extension of

time to file the notice of appeal or make a showing of excusable

neglect, and the district court has not granted an extension of time to

file.

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). With or without a motion, the district court may grant an extension of time of up

to thirty days upon a showing of excusable neglect. See United States

v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985); United States v.

Schuchardt, 685 F.2d 901, 902 (4th Cir. 1982). If a defendant files his

notice of appeal outside the ten-day appeal period, but within the

thirty-day extension period, the district court must make a factual

finding as to whether excusable neglect warrants an extension of the

ten-day period. See Reyes, 759 F.2d at 353.

Here, Hines noted his appeal outside the ten-day appeal period but

within the thirty-day extension period applicable upon a showing of

excusable neglect. Therefore, we remand this case to the district court

to allow Hines thirty days within which to request, upon a showing

of excusable neglect, an extension of the appeal period. We dispense

with oral argument because the facts and legal contentions are ade-

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quately presented in the materials before the court and argument

would not aid the decisional process.

REMANDED

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