UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-7912

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SONJI PRINCE PABELLON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Spartanburg. Henry M. Herlong, Jr., District

Judge. (CR-98-1169-HMH)

Submitted: June 26, 2006 Decided: July 17, 2006

Before MICHAEL, KING, and SHEDD, Circuit Judges.

Remanded by unpublished per curiam opinion.

Sonji Prince Pabellon, Appellant Pro Se. Elizabeth Jean Howard,

OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Sonji Prince Pabellon seeks to appeal the district

court’s orders denying her motion for reduction of sentence under

18 U.S.C.A. § 3582 (West 2000 & Supp. 2005) and denying her motion

for reconsideration. 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 the motion

for reduction of sentence on October 11, 2005, and the ten-day

appeal period ordinarily would have expired on October 25, 2005.

See Fed. R. App. P. 26 (providing that “intermediate Saturdays,

Sundays, and legal holidays” are excluded when the time period is

less than eleven days). Although Pabellon did not file a notice of

appeal within this ten-day period, she filed a motion for

reconsideration on October 19, 2005. 

Although “the 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.
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Marsh, 755 F.2d 362, 364 (4th Cir. 1985), 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 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 the full time period for

noticing the appeal after the motion to reconsider has been

decided); United States v. Dieter, 429 U.S. 6, 7-8 (1976) (same);

United States v. Healy, 376 U.S. 75, 77-79 (1964) (same); United

States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993) (same).

The district court entered its oral order denying

Pabellon’s motion to reconsider on October 25, 2005; she then had

ten days or until November 8, 2005, to timely file her notice of

appeal. Pabellon’s notice of appeal was filed on November 16,

2005, after the expiration of the appeal period but within the

thirty-day excusable neglect period. Because the notice of appeal

was filed within the excusable neglect period, we remand the case

to the district court for the court to determine whether Pabellon

has shown excusable neglect or good cause warranting an extension

of the ten-day appeal period. The record, as supplemented, will

then be returned to this court for further consideration.

REMANDED