Filed: June 3, 1997

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 96-7897 (CR-94-39-H)

United States of America, Plaintiff - Appellee, versus Barry McCormick, Defendant - Appellant.

O R D E R

The Court amends its opinion filed March 13, 1997, as follows: On the cover sheet, section 3, line 3 -- the district court case number is corrected to read "CR-94- 39-H." For the Court - By Direction

/s/ Patricia S. Connor Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 96-7897

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus BARRY MCCORMICK, Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis- trict of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CR-94-39-H)

Submitted: February 27, 1997 Decided: March 13, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Barry McCormick, Appellant Pro Se. William Arthur Webb, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Appellant 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)). Parties to criminal actions have ten days within which to file in the district court notices of appeal from judg- ments or orders. Fed. R. App. P. 4(b). The only exception to the appeal period is when the district court extends the time to appeal upon a showing of excusable neglect.

The district court entered its order on November 20, 1996; Appellant's notice of appeal was filed on December 9, 1996. Appel- lant's failure to note a timely appeal or obtain an extension of the appeal period leaves this court without jurisdiction to con- sider the merits of Appellant's appeal. We therefore dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED