United States v. Moore

                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-6043



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ETHAN JEROME MOORE, a/k/a Nate,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Charles H. Haden II,
District Judge. (CR-99-90; CA-00-1205-3)


Submitted:   March 11, 2004                 Decided:   March 19, 2004


Before WIDENER, WILKINSON, and MICHAEL, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Ethan Jerome Moore, Appellant Pro Se. Michael Lee Keller, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Ethan Jerome Moore seeks to appeal the district court’s

order accepting the report and recommendation of the magistrate

judge and dismissing his motion filed pursuant to 28 U.S.C. § 2255

(2000). 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

April 24, 2002.    The notice of appeal was filed on November 24,

2003.   Because Moore failed to file a timely notice of appeal or to

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

leave to proceed in forma pauperis and 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



                               - 2 -