UNPUBLISHED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Remanded by unpublished per curiam opinion.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. Bat-
taglia, 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Unpublished opinions are not binding precedent in this circuit.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 viola-
tion of 18 U.S.C.A. § 924(c) (West Supp. 1998). After the Supreme
Court's decision in Bailey v. United States, 

(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) (unpub-
lished). Hines was resentenced to a term of 168 months imprison-
ment. 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 with-
out 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, 

, 353 (4th Cir. 1985); United States v.
Schuchardt, 

, 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 

.

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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