UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7854
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EDWARD ELLERBE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. W. Earl Britt, Senior Dis-
trict Judge. (CR-97-100)
Submitted: March 25, 1999 Decided: March 31, 1999
Before WILKINS and MOTZ, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished opinion per curiam opinion.
James Edward Ellerbe, Appellant Pro Se. John Samuel Bowler, Assis-
tant United States Attorney, Anne Margaret Hayes, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Ellerbe 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. Director, Dep’t of
Corrections, 434 U.S. 257, 264 (1978) (quoting United States v.
Robinson, 361 U.S. 220, 229 (1960)). A post-conviction motion for
return of property filed under Fed. R. Crim. P. 41(e) is a civil
action. See United States v. Garcia, 65 F.3d 17, 20 (4th Cir.
1995). In civil actions in which the United States or an officer
or agency thereof is a party, a party is accorded sixty days within
which to file in the district court a notice of appeal from
judgments or final orders. Fed. R. App. P. 4(a)(1). The only
exceptions to the appeal period are when the district court extends
the time to appeal under Fed. R. App. P. 4(a)(5) or reopens the
appeal period under Fed. R. App. P. 4(a)(6).
The district court entered its order on October 1, 1998;
Ellerbe’s notice of appeal was dated December 6, and filed on
December 14, 1998, both of which are beyond the sixty-day appeal
period. Ellerbe’s failure to note a timely appeal or obtain an
extension of the appeal period leaves this court without jurisdic-
tion to consider the merits of Ellerbe’s appeal. We therefore
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the ma-
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terials before the court and argument would not aid the decisional
process.
DISMISSED
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