UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-7030

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SOLOMON N. POWELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, District 

Judge. (3:07-cr-00324-JRS-1; 3:12-cv-00023-JRS)

Submitted: November 15, 2013 Decided: December 4, 2013

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Remanded by unpublished per curiam opinion.

Solomon N. Powell, Appellant Pro Se. Michael Ronald Gill, 

Assistant United States Attorney, Richmond, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM: 

Solomon N. Powell seeks to appeal the portion of the 

district court’s order dismissing his 28 U.S.C.A. § 2255 (West 

Supp. 2013) motion.1 Parties in a civil action in which the 

United States or an officer or agency of the federal government 

is a party are accorded sixty days after the entry of the 

district court’s final judgment or order to note an appeal. 

Fed. R. App. P. 4(a)(1)(B). This time period is “mandatory and 

jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 

264 (1978) (internal quotation marks omitted); see also

Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely 

filing of a notice of appeal in a civil case is a jurisdictional 

requirement.”). However, if a party moves for an extension of 

time to appeal within thirty days after the expiration of the

original appeal period and demonstrates excusable neglect or 

good cause, a district court may extend the time to file a 

notice of appeal. Fed. R. App. P. 4(a)(5)(A).

 1 Although Powell also appeals the portions of the district 

court’s order denying his 18 U.S.C. § 3582(c)(2) (2012) motion 

for a sentence reduction and his motion for reduction of 

restitution, we defer disposition of those portions of Powell’s 

appeal until the case is returned from the district court. We 

also defer disposition of Powell’s pending motion to include the 

documents attached to his misrouted notice of appeal with his 

informal brief.
3

The district court entered judgment against Powell on 

March 20, 2013; Powell therefore had until May 20 to file a 

timely notice of appeal of the dismissal of his § 2255 motion. 

Powell filed his notice of appeal on May 29 at the earliest.2 

However, Powell separately filed a motion for extension of time 

on the same day and within the thirty-day excusable neglect 

period.3

 Accordingly, we remand for the limited purpose of 

determining whether Powell has demonstrated excusable neglect or 

good cause warranting an extension of the sixty-day appeal 

period. The record, as supplemented, will then be returned to 

this court for further consideration.

REMANDED

 2 Although the envelope in which Powell submitted his notice 

of appeal does not clearly indicate the date he delivered it to 

prison officials for mailing to the court, we conclude from an 

examination of the record that he did not do so prior to May 29. 

See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that 

prisoner’s notice of appeal deemed filed on date he delivered it 

to prison authorities for mailing to court). Moreover, the fact 

that Powell mistakenly mailed his notice of appeal to this court 

does not affect the timeliness determination. See Fed. R. App. 

P. 4(d) (providing that notice of appeal mistakenly filed in 

court of appeals is considered filed in district court on date 

so noted).

3 Although we previously construed Powell’s “Motion for 

Request to File an Out of Time Request for COA” and “Request for 

Certificate of Appealability” collectively as a notice of 

appeal, upon closer examination, we construe the former motion 

as a Fed. R. App. P. 4(a)(5) motion for an extension of time to 

file an appeal and the latter motion as Powell’s notice of 

appeal.