United States v. Smalls

                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-7275



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WALTER SMALLS, a/k/a Walt,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-02-136; CA-03-1293-1)


Submitted:   March 3, 2006                 Decided:   March 30, 2006


Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Walter Smalls, Appellant Pro Se. Michael Edward Rich, 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Unpublished opinions are not binding precedent in this circuit.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:

          Walter Smalls seeks to appeal the district court’s order

denying his 28 U.S.C. § 2255 (2000) motion.    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

May 10, 2005.     The notice of appeal was dated August 10, 2005.*

Because Smalls 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




     *
      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 delivered to prison officials for mailing to the court.
See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).

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legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                        DISMISSED




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