Rehearing granted, November 23, 2004

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-6793



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


HERMAN WOODEN,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Chief
District Judge. (CR-90-18-A)


Submitted:   September 22, 2004            Decided:   October 14, 2004


Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Herman Wooden, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

                  Herman Wooden seeks to appeal the district court’s order

denying reconsideration of his motion for modification of his

sentence under 18 U.S.C. § 3582(c)(2).                  We dismiss the appeal for

lack of jurisdiction.

                  Because a § 3582 motion is criminal in nature, Wooden had

ten days from the entry of the district court’s judgment to note a

timely appeal.            See Fed. R. App. P. 4(b)(1)(A); United States v.

Alvarez, 

, 310 (5th Cir. 2000).                The district court can

extend the appeal period under Rule 4(b)(4) upon a showing of

excusable neglect or good cause.               See United States v. Reyes, 

, 353 (4th Cir. 1985).              However, the district court may not

extend the appeal period beyond the forty days provided in Rule

4(b).       Fed. R. App. P. 26(b)(1); see United States v. Raynor, 

, 196 (4th Cir. 1991).

                  The district court entered its order on February 23,

2004.       Accordingly, the ten-day appeal period expired on March 8,

2004,       see    Fed.    R.   App.   P.    26(a)(2)    (excluding   intermediate

Saturdays and Sundays from 10-day period), and the thirty-day

excusable neglect period expired on April 5, 2004.                 Because Wooden

did not file his notice of appeal until April 9, 2004, at the

earliest,* we do not have jurisdiction to consider the merits of


        *
      Wooden’s notice of appeal is dated April 9, 2004, and was
filed by the district court clerk on April 16, 2004. Thus, even
according Wooden the benefit of the earlier date, see Fed. R. App.

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the appeal.   We therefore deny Wooden’s motion for appointment of

counsel and dismiss the appeal as untimely.   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.



                                                         DISMISSED




P. 4(c)(1), his notice of appeal was untimely.

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