UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RODNEY EUGENE SMITH,
Defendant - Appellant.
No. 04-7364
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RODNEY EUGENE SMITH,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-01-7)
Submitted: November 4, 2004 Decided: November 10, 2004
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Rodney Eugene Smith, Appellant Pro Se. Karen B. George, 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Unpublished opinions are not binding precedent in this circuit.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).
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PER CURIAM:
In No. 04-7174, Rodney Eugene Smith appeals his criminal
judgment entered on December 13, 2001. Because Smith has 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. Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978) (quoting
United States v. Robinson, 361 U.S. 220, 229 (1960)). A defendant
in a criminal action has ten days within which to file in the
district court a notice of appeal from a judgment or final order.
Fed. R. App. P. 4(b). The only exception to the appeal period is
when the district court extends the time to appeal upon showing of
excusable neglect. Id.
The district court entered its judgment on December 13,
2001; Smith’s notice of appeal was filed in July 2004, well beyond
the ten day appeal period. Smith’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 his appeal. We
therefore dismiss the appeal. In No. 04-7364, Smith appeals the
district court’s order denying leave to proceed on appeal in forma
pauperis. We have reviewed the record and find no reversible
error.
Accordingly, we dismiss both appeals. We further deny
Smith’s motions to proceed in forma pauperis and to correct the
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record. 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
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