UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7526

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HOWARD EUGENE SHERRILL,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Graham C. Mullen, District Judge. (CR-93-8-MU, CA-96-31-5-MU)

Submitted: March 12, 1998 Decided: March 24, 1998

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Howard Eugene Sherrill, Appellant Pro Se. Harry Thomas Church, Assistant United States Attorney, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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 the

appeal for lack of jurisdiction. The time periods for filing no-

tices 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)). Parties to civil actions have

sixty days within which to file in the district court notices of

appeal from judgments or final orders. Fed. R. App. P. 4(a)(1). The

only exceptions to the appeal period are when the district court extends the time to appeal under Fed. R. App. P. 4(a)(5) or reopens

the appeal period under Fed. R. App. P. 4(a)(6).

The district court entered its order on August 11, 1997; Ap- pellant's notice of appeal was filed on October 17, 1997. Appel-

lant's failure to file a timely notice of appeal* or to obtain

either an extension or a reopening of the appeal period leaves this

court without jurisdiction to consider the merits of Appellant's

appeal. We therefore deny a certificate of appealability and dis- miss 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

* For the purposes of this appeal we assume that the date Ap- pellant wrote on the notice of appeal is the earliest date it would have been submitted to prison authorities. See Houston v. Lack,

(1988).

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