                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-7022



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOSE PENA ROSARIO, a/k/a John Doe, a/k/a July,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle, Chief
District Judge. (CR-96-62-BO)


Submitted:   November 20, 2002         Decided:     December 12, 2002


Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Jose Pena Rosario, Appellant Pro Se. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Jose Pena Rosario seeks to appeal the district court order

denying relief on his motion to compel the Government to file a

Fed. R. Crim. P. 35 motion.       The Government has moved to dismiss,

alleging Rosario did not timely file his notice of appeal. We grant

the Government’s motion to dismiss the appeal.

        In criminal cases, the defendant is accorded ten days after

entry of the district court’s final judgment or order to note an

appeal, see Fed. R. App. P. 4(b)(1)(A), unless the district court

extends the appeal period under Fed. R. App. P. 4(b)(4).                  This

appeal period is “mandatory and jurisdictional.”          United States v.

Raynor, 939 F.2d 191, 197 (4th Cir. 1991).

     The    district    court’s   order    denying   Rosario’s   motion    was

entered on its docket on May 20, 2002.         Rosario filed a “Motion to

Prosecute the Appeal” that he averred he mailed no earlier than

June 11, 2002. The Government averred the motion was untimely

filed, and the district court denied Rosario’s “Motion to Prosecute

the Appeal” as time-barred. Because Rosario failed to file a timely

notice of appeal, we lack jurisdiction to review the district

court’s order.     Accordingly, we grant the Government’s motion to

dismiss the appeal.       We dispense with oral argument because the

facts    and   legal   contentions   are   adequately   presented   in     the




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materials   before   the   court   and   argument   would   not    aid   the

decisional process.




                                                                  DISMISSED




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