UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-6635

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

RONALD SMITH, Defendant - Appellant.

Appeal from the United States District Court for the Western Dis- trict of Virginia, at Charlottesville. James H. Michael, Jr., Senior District Judge. (CR-92-58)

Submitted: February 26, 1998 Decided: March 18, 1998

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Ronald Smith, Appellant Pro Se. Donald Ray Wolthuis, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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 from the district court's order denying his motion for resentencing pursuant to 18 U.S.C.A. § 3582(c) (West 1985 & Supp. 1997). The time periods for filing notices of appeal are governed by Fed. R. App. P. 4. These periods are "mandatory and jurisdictional." United States v. Raynor, 939 F.2d 191, 197 (4th Cir. 1991). A criminal defendant has ten days within which to file in the district court a notice of appeal from judgment or a final order. Fed. R. App. P. 4(b); see United States v. Ono, 72 F.3d 101, 102-03 (9th Cir. 1995) (applying ten-day appeal period of Rule 4(b) to § 3582 motions). The only ex- ception to the appeal period is when the district court extends the time to appeal upon a showing of excusable neglect under Rule 4(b).

The district court entered its order on March 24, 1997; Appel- lant's notice of appeal was filed on May 5, 1997, which is beyond the ten-day appeal period. Appellant's failure to note a timely ap- peal or obtain an extension of the appeal period leaves this court without jurisdiction to consider 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 deci- sional process.

DISMISSED