United States v. Smith

                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-6122


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENYATTA DEARRON SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, District Judge.
(4:05-cr-00471-TLW-1; 4:08-cv-70038-TLW)


Submitted:   March 16, 2010                 Decided:   March 24, 2010


Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kenyatta Dearron Smith, Appellant Pro Se. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Kenyatta Dearron Smith seeks to appeal the district

court’s   order   dismissing   as    untimely   his   28   U.S.C.A.   §   2255

(West Supp. 2009) 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.

Dir., 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 July 27, 2009.      The notice of appeal was filed on December

29, 2009. *   Because Smith 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

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



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in the materials before the court and argument would not aid the

decisional process.

                                                       DISMISSED




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