UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6655

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

AMIE LYNN NIETO, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CR-02-73; CA-04-19-2)

Submitted: July 28, 2004 Decided: August 18, 2004

Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.

Remanded by unpublished per curiam opinion.

Amie Lynn Nieto, Appellant Pro Se. Joseph Evan DePadilla, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Amie Lynn Nieto seeks to appeal the district court’s order denying her 28 U.S.C. § 2255 (2000) motion. The notice of appeal was received in the district court shortly after expiration of the appeal period. Under Fed. R. App. P. 4(c)(1) and Houston v. Lack, 487 U.S. 266 (1988), the notice is considered filed as of the date Nieto properly delivered it to prison officials for mailing to the court. The record does not reveal if or when Nieto complied with the requirements of Fed. R. App. P. 4(c)(1). Accordingly, we remand the case for the district court to obtain this information from the parties and to determine whether the filing was timely under Fed. R. App. P. 4(c)(1) and Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

- 2 -