                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 02-6276
ERIC E. ALVAREZ,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Eastern District of North Carolina, at Wilmington.
                Malcolm J. Howard, District Judge.
                     (CR-97-47, CA-01-75-H)

                      Submitted: May 7, 2002

                      Decided: June 19, 2002

       Before WILKINS and LUTTIG, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Remanded by unpublished per curiam opinion.


                            COUNSEL

Eric E. Alvarez, Appellant Pro Se. Robert Edward Skiver, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. ALVAREZ
                               OPINION

PER CURIAM:

   Eric E. Alvarez appeals the district court’s denial of his motion
filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2001) and his
motion to reconsider. The notice of appeal in this case was received
in the district court after expiration of the sixty day appeal period fol-
lowing the denial of Alvarez’s motion to reconsider. However, Alva-
rez dated his notice of appeal prior to the expiration of the appeal
period. Under Houston v. Lack, 487 U.S. 266, 276 (1988), the notice
of appeal is deemed filed on the date it was delivered to prison offi-
cials. Because the record as it stands does not indicate when Alvarez
delivered his notice of appeal to prison officials for mailing, we can-
not determine whether the notice of appeal is timely.

   The record is similarly unclear as to the date Alvarez filed his
motion to reconsider from the court’s order denying relief in his
habeas motion. Under Houston v. Lack, the motion to reconsider is
deemed filed as of the date the petitioner delivered it to prison offi-
cials for forwarding to the court. See United States v. Duke, 50 F.3d
571, 575 (8th Cir. 1995). Although Alvarez’s motion to reconsider
was received by the district court clerk approximately one month after
denial of his § 2255 motion, Alvarez alleges he delivered the motion
to the proper prison officials on the tenth day following the district
court’s decision. The date Alvarez delivered the motion to reconsider
to prison officials must be ascertained by the district court as the tim-
ing of the filing of that motion determines whether it is properly con-
sidered under Fed R. Civ. P. 59(e) or Fed. R. Civ. P. 60(b). See In re
Burnley, 988 F.2d 1 (4th Cir. 1992). Accordingly, we remand the case
for the district court to determine the timeliness of the filing of the
notice of appeal under Houston v. Lack. In the event that the court
concludes that Alvarez’s notice of appeal was timely filed, it must
then determine whether Alvarez’s motion to reconsider was delivered
to prison officials for mailing no later than the tenth day following the
denial of Alvarez’s § 2255 motion. The record, as supplemented, will
then be returned to this court for further consideration.

                                                           REMANDED
