UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7241

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRENDA LAY LYNN,

Defendant - Appellant.

Appeal from the United States District Court for the Northern Dis- trict of West Virginia, at Martinsburg. Irene M. Keeley, District Judge. (CR-94-130, CA-97-29-3)

Submitted: November 6, 1997 Decided: December 23, 1997

Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Brenda Lay Lynn, Appellant Pro Se. Paul Thomas Camilletti, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Appellant appeals the district court's order denying three

post-conviction motions. Insofar as appellant appeals the district

court's decision denying her motion filed under Fed. R. Civ. P.

60(b), we have reviewed the record and the district court's opinion

and find no reversible error. Accordingly, we affirm that order on the reasoning of the district court. United States v. Lynn, No. CA- 97-29-3 (N.D.W. Va. July 21, 1997).

Insofar as appellant seeks to appeal from the motions filed

under

(b) (1994) seeking a reduction in sentence and an evidentiary hearing in that matter, the notice of appeal was

untimely. We therefore dismiss the appeal as to those motions 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,

(1978) (quoting United States v. Robinson,

(1960)). Criminal defendants have ten days within

which to file in the district court notices of appeal from judg- ments or final orders. See Fed. R. App. P. 4(b). The only exception to the appeal period is when the district court extends the time to

appeal under Fed. R. App. P. 4(b) upon a showing of excusable

neglect. The district court entered its order denying the criminal

motions on July 21, 1997; Appellant's notice of appeal was filed in

the district court on September 2, 1997. Though the record contains

no certification of when she relayed her notice of appeal to prison

authorities for mailing to the district court, it appears that Ap-

2 pellant mailed the document on August 26, 1997, beyond the ten-day

appeal period. Appellant's failure to obtain an extension within

the prescribed time frame leaves this court without jurisdiction to

consider the merits of Appellant's 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.

AFFIRMED IN PART; DISMISSED IN PART

* Appellant's § 3553(b) motion was untimely. Accordingly, we conclude that remanding to the district court for assessment of whether Appellant can demonstrate excusable neglect for her late notice of appeal is not warranted.

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