Rehearing granted, February 11, 2004
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-6276
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC E. ALVAREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
District Judge. (CR-97-47, CA-01-75-H)
Submitted: August 28, 2003 Decided: September 3, 2003
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Eric E. Alvarez, Appellant Pro Se. Robert Edward Skiver, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eric E. Alvarez seeks to appeal the district court’s orders
denying his § 2255 motion and motion to reconsider. We dismiss the
appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
When the United States or its officer or agency is a party,
the notice of appeal must be filed no more than sixty days after
the entry of the district court’s final judgment or order, Fed. R.
App. P. 4(a)(1)(B), 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 Corr., 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
November 16, 2001. As the district court properly concluded on
remand from this court, Alvarez’s notice of appeal was due on
January 15, 2002 and was given to prison officials for mailing on
day late, on January 16, 2002. Because Alvarez 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
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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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