                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-7399



COMMONWEALTH OF VIRGINIA,

                                                 Plaintiff - Appellee,

          versus


SIMON BANKS,

                                                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-04-249-1-MG)


Submitted:     January 12, 2005             Decided:   February 3, 2005


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Simon Banks, Appellant Pro Se.     Elliott Casey, COMMONWEALTH’S
ATTORNEY’S OFFICE, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Simon Banks appeals from the district court’s order

dismissing his petition for removal of a state criminal prosecution

against him and denying his motion for reconsideration.    While the

district court properly concluded it lacked jurisdiction over the

case, see City of Greenwood, MS. v. Peacock, 384 U.S. 808, 827-28

(1966), the proper disposition upon a determination of the lack of

subject matter jurisdiction is to remand the case to the state

court,   rather    than   dismiss   the   action.    See   28   U.S.C.

§§ 1446(c)(3), (4), 1447(c) (2000); see, e.g., Virginia v. Wallace,

357 F.2d 105, 106 (4th Cir. 1966) (affirming district court order

remanding criminal prosecution to state court).

          Accordingly, we vacate the district court’s dismissal

order and the order denying reconsideration and remand this case to

the district court with instructions to remand the case to the

state court.   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.



                                                VACATED AND REMANDED




                               - 2 -
