                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-7174



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RODNEY EUGENE SMITH,

                                            Defendant - Appellant.


                            No. 04-7364



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RODNEY EUGENE SMITH,

                                            Defendant - Appellant.


Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-01-7)


Submitted:   November 4, 2004          Decided:     November 10, 2004


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.


Rodney Eugene Smith, Appellant Pro Se. Karen B. George, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

            In No. 04-7174, Rodney Eugene Smith appeals his criminal

judgment entered on December 13, 2001.   Because Smith has 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. Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978) (quoting

United States v. Robinson, 361 U.S. 220, 229 (1960)).   A defendant

in a criminal action has ten days within which to file in the

district court a notice of appeal from a judgment or final order.

Fed. R. App. P. 4(b).    The only exception to the appeal period is

when the district court extends the time to appeal upon showing of

excusable neglect.    Id.

            The district court entered its judgment on December 13,

2001; Smith’s notice of appeal was filed in July 2004, well beyond

the ten day appeal period.   Smith’s failure to note a timely appeal

or obtain an extension of the appeal period leaves this court

without jurisdiction to consider the merits of his appeal.       We

therefore dismiss the appeal.    In No. 04-7364, Smith appeals the

district court’s order denying leave to proceed on appeal in forma

pauperis.     We have reviewed the record and find no reversible

error.

            Accordingly, we dismiss both appeals.   We further deny

Smith’s motions to proceed in forma pauperis and to correct the


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record. 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




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