UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-6210

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

KENNETH THOMAS, SR., Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-94-514-A)

Submitted: April 21, 1998 Decided: June 2, 1998

Before WIDENER and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Kenneth Thomas, Sr., Appellant Pro Se. Morris Rudolph Parker, Jr., Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Appellant appeals the district court's order denying his 18 U.S.C. § 3582 (1994) motion for a downward departure based on his efforts toward rehabilitation.* We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See United States v. Thomas, No. CR-94-514-A (E.D. Va. Jan. 6, 1998). 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.

AFFIRMED

* Although Appellant's notice of appeal was filed beyond the ten-day appeal period set forth in Fed. R. App. P. 4(b), the record supports a finding of excusable neglect. Accordingly, we decline to remand to the district court, and we have considered the appeal on the merits. See United States v. Reyes, 759 F.2d 351, 353-54 (4th Cir. 1985); see generally United States v. Petty, 82 F.3d 809, 810 (8th Cir. 1996).