US v. Victor Garcia, No. 09-6627 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6627 UNITED STATES OF AMERICA, Plaintiff Appellee, v. VICTOR MANUAL GARCIA, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:06-cr-00068-JAB-1; 1:07-cv-00851-JABRAE) Submitted: July 9, 2009 Decided: July 20, 2009 Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Victor Manual Garcia, Appellant Pro Se. Terry Michael Meinecke, Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Victor court s order Manual accepting Garcia the seeks to appeal recommendation of the the district magistrate judge and denying relief on his 28 U.S.C. § 2255 (2006) 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). appeal period is mandatory and jurisdictional. This See Bowles v. Russell, 551 U.S. 205 (2007). The district court s order was entered on the docket on July 24, 2008. 2009. * The notice of appeal was filed on March 2, Because Garcia failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. facts and legal We dispense with oral argument because the contentions are * adequately presented in the 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). 2 materials before the court and argument would not aid the decisional process. DISMISSED 3

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