United States v. Fitzgerald

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-6781

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARSHALL EARL FITZGERALD, a/k/a Marshall E. Fleming, a/k/a Mickey, a/k/a Brownie, a/k/a Allen Gibson, a/k/a Charles E. Fleaming, a/k/a Charles Fitzgerald, a/k/a Marshall E. Fleaming, a/k/a Marshall Fitzgerrel,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge. (CR-94-250, CA-97-794-AM)

Submitted: July 30, 1998 Decided: August 27, 1998

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Marshall Earl Fitzgerald, Appellant Pro Se. Gerald J. Smagala, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Appellant filed an untimely notice of appeal. We dismiss for

lack of jurisdiction. The time periods for filing notices of appeal

are governed by Fed. R. App. P. 4. These periods are “mandatory and

jurisdictional.” Browder v. Director, Dep’t of Corrections, 434

U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S.

220, 229 (1960)). Parties to civil actions have sixty within which

to file in the district court notices of appeal from judgments or

final orders. See Fed. R. App. P. 4(a)(1). The only exceptions to

the appeal period are when the district court extends the time to

appeal under Fed. R. App. P. 4(a)(5) or reopens the appeal period

under Fed. R. App. P. 4(a)(6).

The district court entered its order on September 3, 1997;

Appellant’s notice of appeal was filed on May 22, 1998, which is

beyond the sixty-day appeal period. Appellant’s failure to note a

timely appeal or obtain an extension of the appeal period leaves

this court without jurisdiction to consider the merits of Appel-

lant’s appeal. We therefore deny a certificate of appealability and

dismiss the appeal. We dispense with oral argument because the

facts and legal contentions are adequately presented in the mate-

rials before the court and argument would not aid the decisional

process.

DISMISSED