                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7877


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

DENNIS MERRIMON WATERS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:01-cr-00048-LHT-10)


Submitted:    January 14, 2010              Decided:   January 21, 2010


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Dennis Merrimon Waters, Appellant Pro Se.    Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Dennis Merrimon Waters seeks to appeal the district

court’s order denying his motion seeking relief under Fed. R.

Civ. P. 60(b).     We dismiss the appeal for lack of jurisdiction

because the notice of appeal was not timely filed.

          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, Fed. R. App. P. 4(a)(1)(B), 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.       See Bowles v.

Russell, 551 U.S. 205 (2007).

          The district court’s order was entered on the docket

on May 18, 2009.     The notice of appeal was filed on September

28, 2009. *   Because Waters failed to file a timely notice of

appeal or to obtain an extension or reopening of the appeal

period, we dismiss the appeal.       We dispense with oral argument

because the facts and legal contentions are adequately presented




     *
      For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).



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in the materials before the court and argument would not aid the

decisional process.

                                                       DISMISSED




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