United States v. Smith ( 2010 )

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
2
in the materials before the court and argument would not aid the
decisional process.
DISMISSED
3