                   Rehearing granted, May 26, 2004



                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-7657



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


ERNEST BAILEY,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-00-152-MJG; CA-02-4025-MJG)


Submitted: January 15, 2004                 Decided:   January 28, 2004


Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Ernest Bailey, Appellant Pro Se. A. David Copperhite, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Ernest Bailey seeks to appeal the district court’s order

denying relief on his motion to vacate, set aside or correct

sentence under 28 U.S.C. § 2255 (2000).           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.”             Browder v. Director, 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

August 1, 2003.         The notice of appeal was filed on October 9,

2003.*   Because Bailey 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   in   the


     *
      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. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).

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materials   before   the   court   and     argument   would   not    aid   the

decisional process.



                                                                    DISMISSED




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