                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-7030


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SOLOMON N. POWELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, District
Judge. (3:07-cr-00324-JRS-1; 3:12-cv-00023-JRS)


Submitted:   November 15, 2013            Decided:   December 4, 2013


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Remanded by unpublished per curiam opinion.


Solomon N. Powell, Appellant Pro Se.  Michael Ronald Gill,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 Solomon N. Powell seeks to appeal the portion of the

district court’s order dismissing his 28 U.S.C.A. § 2255 (West

Supp. 2013) motion. 1                Parties in a civil action in which the

United States or an officer or agency of the federal government

is    a       party   are   accorded    sixty      days    after    the    entry     of    the

district         court’s    final     judgment     or    order    to     note   an   appeal.

Fed. R. App. P. 4(a)(1)(B).                  This time period is “mandatory and

jurisdictional.”            Browder v. Dir., Dep’t of Corr., 434 U.S. 257,

264       (1978)      (internal       quotation         marks    omitted);       see      also

Bowles v.         Russell,     551    U.S.    205,      214     (2007)    (“[T]he      timely

filing of a notice of appeal in a civil case is a jurisdictional

requirement.”).             However, if a party moves for an extension of

time to appeal within thirty days after the expiration of the

original         appeal     period    and    demonstrates        excusable      neglect     or

good cause, a district court may extend the time to file a

notice of appeal.            Fed. R. App. P. 4(a)(5)(A).




          1
       Although Powell also appeals the portions of the district
court’s order denying his 18 U.S.C. § 3582(c)(2) (2012) motion
for a sentence reduction and his motion for reduction of
restitution, we defer disposition of those portions of Powell’s
appeal until the case is returned from the district court.    We
also defer disposition of Powell’s pending motion to include the
documents attached to his misrouted notice of appeal with his
informal brief.



                                               2
               The district court entered judgment against Powell on

March 20, 2013; Powell therefore had until May 20 to file a

timely notice of appeal of the dismissal of his § 2255 motion.

Powell filed his notice of appeal on May 29 at the earliest. 2

However, Powell separately filed a motion for extension of time

on   the     same    day   and    within   the   thirty-day       excusable   neglect

period. 3          Accordingly,    we   remand   for    the   limited   purpose     of

determining whether Powell has demonstrated excusable neglect or

good       cause    warranting     an   extension      of   the   sixty-day    appeal

period.       The record, as supplemented, will then be returned to

this court for further consideration.

                                                                              REMANDED



       2
       Although the envelope in which Powell submitted his notice
of appeal does not clearly indicate the date he delivered it to
prison officials for mailing to the court, we conclude from an
examination of the record that he did not do so prior to May 29.
See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that
prisoner’s notice of appeal deemed filed on date he delivered it
to prison authorities for mailing to court). Moreover, the fact
that Powell mistakenly mailed his notice of appeal to this court
does not affect the timeliness determination. See Fed. R. App.
P. 4(d) (providing that notice of appeal mistakenly filed in
court of appeals is considered filed in district court on date
so noted).
       3
        Although we previously construed Powell’s “Motion for
Request to File an Out of Time Request for COA” and “Request for
Certificate of Appealability” collectively as a notice of
appeal, upon closer examination, we construe the former motion
as a Fed. R. App. P. 4(a)(5) motion for an extension of time to
file an appeal and the latter motion as Powell’s notice of
appeal.



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