United States v. Smith

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 99-7522

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANDRE R. SMITH, a/k/a Erco,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Richmond. James R. Spencer, District Judge. (CR-94-79)

Submitted: July 27, 2000 Decided: August 1, 2000

Before MURNAGHAN, WILKINS, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Andre R. Smith, Appellant Pro Se. John Granville Douglass, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Andre M. Smith seeks to appeal the district court’s order de-

nying his 28 U.S.C.A. § 2255 (West Supp. 2000) motion. We dismiss

the appeal for lack of jurisdiction because Smith’s notice of

appeal was not timely filed.

Parties are accorded sixty days after the entry of the dis-

trict court’s final judgment or order to note an appeal, see Fed.

R. App. P. 4(a)(1), unless the district court extends the appeal

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

under Fed. R. App. P. 4(a)(6). This appeal period is “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)).

The district court’s order was entered on the docket on August

13, 1999. Smith’s notice of appeal was filed on October 13, 1999.*

Because Appellant failed to file a timely notice of appeal or to

obtain an extension or reopening of the appeal period, we dismiss

the appeal. 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

* For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been given to prison officials for mailing. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).