US v. Kenyatta Smith, No. 10-6122 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6122 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENYATTA DEARRON SMITH, Defendant -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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 (West Supp. 2009) motion. as untimely his 28 U.S.C.A. § 2255 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 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. 29, 2009. * The notice of appeal was filed on December 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). 2 in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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