US v. Smalls, No. 05-7275 (4th Cir. 2006)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7275 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus WALTER SMALLS, a/k/a Walt, Defendant -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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. ยง 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). mandatory and jurisdictional. This appeal period is 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). - 2 - legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 3 -
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