                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7024


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHERMAN KEMP,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, District Judge.
(1:07-cr-00295-BEL-1; 1:09-cv-01575-BEL)


Submitted:   September 22, 2010           Decided:   October 27, 2010


Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Sherman Kemp, Appellant Pro Se. Ayn Brigoli Ducao, OFFICE OF
THE UNITED STATES ATTORNEY, Charles Joseph Peters, Sr.,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sherman     Kemp     seeks    to       appeal       the   district    court’s

order dismissing without prejudice his 28 U.S.C.A. § 2255 (West

Supp.    2010)   motion     to   vacate       his    sentence.         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).                              “[T]he

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

jurisdictional requirement.”              Bowles v. Russell, 551 U.S. 205,

214 (2007).

            The district court’s order was entered on the docket

on March 26, 2010.          The notice of appeal was filed on July 19,

2010.     Along with his untimely notice of appeal, Kemp filed a

motion to extend time in which to file a notice of appeal based

on his claim that the district court sent the final order as

well as an order to reply to the Government’s response to the

federal prison at which Kemp had been previously confined, prior

to his transfer to a different facility.                         The district court,

applying Fed. R. App. P. 4(a)(5), found that because Kemp had

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failed to apprise the court of his change of address, and that

failure resulted in the misrouted orders, he could not show good

cause    or   excusable      neglect      for    the    delay,     and    denied   Kemp’s

motion.

              Because      Kemp     claimed      that     he     never     received    the

district      court’s       order    dismissing         his      § 2255    motion,     the

district court should have applied Fed. R. App. P. 4(a)(6) in

evaluating       Kemp’s     motion.        Pursuant        to     Rule     4(a)(6),    the

district court may reopen the appeal period for fourteen days if

it finds that:             (1) a party entitled to notice of entry of

judgment did not timely receive the notice, and (2) no party

would be prejudiced.           Fed. R. App. P. 4(a)(6).                   This provision

requires a motion to reopen to be filed on or before the earlier

of 180 days following entry of judgment or fourteen days after

receipt of the judgment.            Id.

              Though the district court may have mistakenly applied

Rule 4(a)(5)’s good cause and excusable neglect requirements to

Kemp’s    motion,     we    conclude      that    had     the     court    applied    Rule

4(a)(6),      the   outcome       would   be     the     same.      Rule     4(a)(6)    is

permissive, and allows a district court to deny a motion arising

under     that      rule     even    if     the        movant     meets     the    rule’s

requirements.        See Benavides v. Bureau of Prisons, 79 F.3d 1211,

1214 (D.C. Cir. 1996) (affirming denial of Rule 4(a)(6) motion

where movant failed to notify court of address change); see also

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In re Jones, 970 F.2d 36, 39 (5th Cir. 1992) (noting that Rule

4(a)(6) is discretionary).      Because Kemp’s failure to keep the

court apprised of his address change led to his not receiving

the court’s orders, he is not entitled to relief under Rule

4(a)(6) for the same reason he was not entitled to relief under

Rule 4(a)(5).

           We   therefore   dismiss       the   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.



                                                                   DISMISSED




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