                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-7053



VENTURA GARCIA,

                                             Plaintiff - Appellant,

          versus


JOHNNIE SHUFFORD,    ex-officer   at   McDowell
County Jail,

                                              Defendant - Appellee.



                            No. 04-7805




VENTURA GARCIA,

                                             Plaintiff - Appellant,

          versus


JOHNNIE SHUFFORD,    ex-officer   at   McDowell
County Jail,

                                              Defendant - Appellee.




Appeals from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen, Chief
District Judge. (CA-02-275)
Submitted:   December 15, 2004           Decided:   January 19, 2005


Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.


No. 04-7053, dismissed; No. 04-7805, affirmed by unpublished per
curiam opinion.


Ventura Garcia, Appellant Pro Se. Mason Gardner Alexander, Jr.,
Amy Shannon Sumerell, FISHER & PHILLIPS, LLP, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




                                 - 2 -
PER CURIAM:

          Ventura Garcia seeks to appeal the district court’s order

entering judgment in his favor in his action filed pursuant to 42

U.S.C. § 1983 (2000).    (Appeal No. 04-7053).    Because Garcia’s

notice of appeal was received in the district court after the

expiration of the appeal period, we remanded the case to the

district court for a determination of the timeliness of the filing

under Fed. R. App. P. 4(c)(1)* and Houston v. Lack, 487 U.S. 266

(1988) (notice considered filed as of the date Appellant delivers

it to prison officials for forwarding to the court).

          On remand, the district court issued an order finding

that Garcia’s notice of appeal was not timely filed.   In appeal No.

04-7805, Garcia seeks to appeal from this order.       An appellate

court cannot disregard a district court’s factual findings absent

clear error.   We find no clear error in the district court’s

determination that Garcia’s notice of appeal was not filed within

the appeal period, and therefore affirm this ruling.     See United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)

(providing standard).

          We dismiss appeal No. 04-7053 for lack of jurisdiction

because the notice of appeal was not timely filed.      Parties are

accorded thirty days after the entry of the district court’s final


     *
      Rule 4(c)(1) states that a prisoner’s notice of appeal is
timely if it is deposited in the institution’s internal mail system
on or before the last day for filing.

                              - 3 -
judgment or order to note an appeal, Fed. R. App. P. 4(a)(1)(A),

unless the district court extends the appeal period under Fed. R.

App. P. 4(a)(5) or reopens the appeal period under Fed. R. App. P.

4(a)(6).    This appeal period is “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)).

            The district court’s order was entered on the docket on

April 27, 2004.      The notice of appeal was filed on June 12, 2004.

Because Garcia failed to file a timely notice of appeal or to

obtain an extension or reopening of the appeal period, we dismiss

this appeal as untimely.      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.


                                                  No. 04-7053, DISMISSED;
                                                    No. 04-7805, AFFIRMED




                                    - 4 -
