USCA4 Appeal: 22-7278 Doc: 9 Filed: 06/20/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7278

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERMAINE OTEASO OGATDES BENNETT, a/k/a Jermaine Oteaso Bennett,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, Chief District Judge. (1:10-cr-00210-TDS-1)

Submitted: June 15, 2023 Decided: June 20, 2023

Before DIAZ, RICHARDSON, and HEYTENS, Circuit Judges.

Remanded by unpublished per curiam opinion.

Jermaine Oteaso Ogatdes Bennett, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-7278 Doc: 9 Filed: 06/20/2023 Pg: 2 of 3

PER CURIAM:

Jermaine Oteaso Ogatdes Bennett seeks to appeal the district court’s October 12,

2022, order denying the portion of his supplemented motion construed as filed under

(c)(1)(B) for a sentence reduction pursuant to § 404(b) of the First Step

Act of 2018,

Stat. 5194, 5222. Bennett filed a notice of appeal

on October 26, 2022. 1 On appeal, Bennett suggests that the district court recharacterize his

pending motion as a motion for reconsideration of the denial order and requests that this

court either stay the proceedings until the district court rules on his motion or remand his

case to the district court. We remand to the district court.

Upon reviewing the record, we conclude that Bennett’s pending “Movant’s Pro Se

Motion for a downward vari[a]nce to the five[-]year mandatory minimum/Objections to

PSR dkt # 96” should have been liberally construed as a motion to reconsider the district

court’s denial order. See Sanford v. Clarke,

(4th Cir. 2022) (“Pro se

filings are to be construed liberally.”). Although “the Federal Rules of Criminal Procedure

do not specifically provide for motions for reconsideration and prescribe the time in which

they must be filed,” Nilson Van & Storage Co. v. Marsh,

(4th Cir. 1985),

a would be appellant who files a reconsideration motion in a criminal case 2 within the

1 See Houston v. Lack,

(1988) (holding that a pro se prisoner’s notice of appeal is considered filed the moment it is delivered to prison authorities for mailing to the court).

See United States v. Goodwyn,

, 235 n.* (4th Cir. 2010) (“[ Section] 2

3582 motions . . . are criminal in nature.”).

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original period in which an appeal is permitted is entitled to the full time period for noticing

the appeal after the motion to reconsider has been decided, see United States v. Ibarra,

, 4 n. 2 (1991); United States v. Christy,

, 767 n. 1 (4th Cir. 1993). Here,

Bennett filed his motion construed as one for reconsideration on October 13, 2022, and the

district court docketed the motion on October 20, 2022, within the allowed appeal period.

See Fed. R. App. P. 4(b)(1)(A), (b)(4). Accordingly, Bennett’s notice of appeal is

premature.

Because Bennett’s notice of appeal will not be effective until the district court

disposes of the motion to reconsider, we are constrained to remand this case so that the

district court may rule on the motion for reconsideration. The parties should inform this

Court when the district court has ruled and provide a copy of the order disposing of the

motion to reconsider. 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.

REMANDED

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