Case: 15-14010    Date Filed: 09/27/2016   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14010
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:97-cr-06007-FAM-6



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

FRITZ LAFONTANTE,
a.k.a. Guy,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (September 27, 2016)

Before HULL, MARCUS, and WILSON, Circuit Judges.

PER CURIAM:
               Case: 15-14010     Date Filed: 09/27/2016     Page: 2 of 4


      Fritz Lafontante, proceeding pro se, appeals the district court’s denial of his

motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on Amendment

782 to the United States Sentencing Guidelines. On appeal, Lafontante argues the

district court’s denial violated his constitutional rights because it was based on

speculative drug–quantity findings. He further contends he is entitled to

appointment of counsel and a lengthier explanation of why his motion was denied.

However, we first must address the timeliness of Lafontante’s appeal.

      “We review de novo whether [Lafontante’s] appeal should be dismissed as

untimely.” See United States v. Glover, 

, 1205 (11th Cir. 2012).

      The rules governing criminal cases apply to § 3582(c)(2) proceedings.

United States v. Fair, 

, 1318 (11th Cir. 2003) (per curiam). “In a

criminal case, a defendant’s notice of appeal must be filed in the district court

within 14 days after” the challenged order is entered on the docket. Fed. R. App.

P. 4(b)(1)(A). A notice of appeal filed by a pro se prisoner is deemed filed on the

date the prisoner delivers it to prison authorities or places it in the prison mail

system. See Fed. R. App. P. 4(c)(1). Absent evidence to the contrary, we will

assume that a prisoner’s filing was delivered to prison authorities on the day he

signed it. Washington v. United States, 

, 1301 (11th Cir. 2001) (per

curiam). The timely filing of a motion for reconsideration “tolls the time for filing

a notice of appeal and the time begins to run anew following disposition of the


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motion.” United States v. Vicaria, 

, 1413–14 (11th Cir. 1992) (per

curiam). To extend the time for filing an appeal, the motion for reconsideration

“must be filed within the period of time allotted for filing a notice of appeal.” 

If it is, then the new period of limitation runs from the date on which the

motion for reconsideration is denied. See 

Rule of Appellate Procedure 4(b)(4), the district court may

grant an extension of time to appeal based on a finding of excusable neglect or

good cause. The district court may “extend the time to file a notice of appeal for a

period not to exceed 30 days from the expiration of the time otherwise prescribed.”

Fed. R. App. P. 4(b)(4). In criminal actions, we customarily treat a late notice of

appeal as a motion for extension of time and remand to the district court for a

determination of excusable neglect or good cause. See United States v. Ward, 

, 1317–18 (11th Cir. 1983). To qualify for such relief, the notice of

appeal must be filed within the additional 30 days during which an extension is

permissible. See id.; Fed. R. App. P. 4(b)(4).

      Here, the district court denied Lafontante’s § 3582(c)(2) motion on July 9,

2015, giving Lafontante until July 23, 2015, to file a timely notice of appeal. See

Fed. R. App. P. 4(b)(1)(A). Instead, Lafontante filed a motion for reconsideration

on July 20, 2015, within the timeframe for a timely notice of appeal, thereby

extending his time for filing a notice of appeal. See 

–14.


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The district court entered the order denying Lafontante’s motion for

reconsideration on August 11, 2015, and thus, the 14-day deadline for filing a

notice of appeal was reset to August 25, 2015. See 

Lafontante

certified that his notice of appeal was delivered to prison authorities for mailing on

August 30, 2015. Therefore, the notice was untimely. Nevertheless, Lafontante

filed his notice within the additional 30 days during which an extension is

permissible, and thus, we construe his late notice as a motion for extension of time

to appeal. See 

–18; Fed. R. App. P. 4(b)(1)(A), 4(b)(4).

The district court denied Lafontante’s notice of appeal, but it is unclear whether the

court treated the notice as a request for an extension of time. Based on this record,

we must vacate and remand for the district court to consider whether an extension

based on excusable neglect or good cause is warranted. See Fed. R. App. P.

4(b)(4) (granting the power to extend the time to file solely to the district court).

      VACATED AND REMANDED.




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