                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6861



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL BERRY,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
00-493; CA-03-1599)


Submitted:   January 31, 2007              Decided:   March 5, 2007


Before WILLIAMS, MOTZ, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Michael Berry, Appellant Pro Se. Gregory Welsh, Angela R. White,
Assistant United States Attorneys, Lynne Ann Battaglia, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael Berry seeks to appeal the district court’s order

denying his 28 U.S.C. § 2255 (2000) motion.             The district court

docket sheet did not reflect that Berry filed a timely notice of

appeal.     However, Berry filed a motion on January 31, 2005,

requesting that the district court apprise him of the status of his

appeal.    The district court responded that a notice of appeal had

not been entered on the docket.           Berry again filed a motion on

May 15, 2005, requesting that the district court apprise him of the

status of his appeal and certificate of appealability.                   Berry

attached a copy of a notice of appeal, which was dated “November

2004.”     The district court construed this filing as a belated

notice of appeal.     We remanded the case to the district court to

determine if Berry filed a timely notice of appeal and, if not,

whether his January 31, 2005 filing constituted a timely motion for

an extension of time.

            The district court conducted a review of the filings

after    finding   that   a   hearing   was   not   necessary.     The   court

determined that Berry’s notice of appeal was due on December 28,

2004.     The court found that Berry did not file a document that

comported with the filing requirements.1            A timely motion for an

extension of time was due on January 27, 2005.            See    Fed. R. App.


     1
      Berry had filed an attachment to his May 15, 2005 motion that
purported to be a notice of appeal he sent to the court in November
2004.

                                    - 2 -
P. 4(a)(5).    Berry filed a motion on January 31, 2005, to apprise

him of the status of his appeal.             The district court found the

pleading was not a timely filed motion for an extension of time.

             When the United States or its officer or agency is a

party, the notice of appeal must be filed no more than sixty days

after the entry of the district court’s final judgment or order.

See Fed. R. App. P. 4(a)(1)(B).         This appeal period is mandatory

and jurisdictional.      See Browder v. Dir., Dep’t of Corr., 434 U.S.

257, 267 (1978) (quoting United States v. Robinson, 361 U.S. 220,

229 (1960)). Since the district court entered the judgment against

Berry on October 29, 2004, he had until December 28, 2004, to file

a timely notice of appeal.

             Because Berry is incarcerated, his notice of appeal is

deemed filed when it is submitted to prison officials for mailing,

in accordance with Houston v. Lack, 487 U.S. 266 (1988).                      To

demonstrate that he timely filed under this rule, Berry must either

submit   a   notarized   statement    setting    forth   the   date   that   he

deposited     the   notice   of   appeal     with   prison     officials     or,

alternatively, submit a declaration in compliance with 28 U.S.C.

§ 1746 (2000).      Fed. R. App. P. 4(c)(1).2


     2
      Under 28 U.S.C. § 1746(2), an inmate must execute a statement
that a timely notice of appeal was deposited in the prison mail
system in substantially the following form: “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is
true and correct. Executed on (date). (Signature).” Under Rule
4(c)(1), the inmate must comply with § 1746 or provide a notarized
statement setting forth the same general information as is required

                                     - 3 -
          Berry’s statement in his notice of appeal attached as an

exhibit does not comport with the requirements of Rule 4(c)(1) and

28 U.S.C. § 1746, as it is not notarized, makes no reference to the

potential penalty for perjury, and is not specifically dated.   In

addition, his January 31, 2005 filing cannot be construed as a

timely motion for an extension of time.

          We therefore dismiss the appeal.   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.

                                                         DISMISSED




under § 1746.

                              - 4 -
