                       Rehearing granted, February 11, 2004




                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 02-6276



UNITED STATES OF AMERICA,

                                                              Plaintiff - Appellee,

          versus


ERIC E. ALVAREZ,

                                                          Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
District Judge. (CR-97-47, CA-01-75-H)


Submitted:   August 28, 2003                      Decided:       September 3, 2003


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


Dismissed by unpublished per curiam opinion.


Eric E. Alvarez, Appellant Pro Se. Robert Edward Skiver, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Eric E. Alvarez seeks to appeal the district court’s orders

denying his § 2255 motion and motion to reconsider.   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

November 16, 2001.   As the district court properly concluded on

remand from this court, Alvarez’s notice of appeal was due on

January 15, 2002 and was given to prison officials for mailing on

day late, on January 16, 2002.   Because Alvarez 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




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presented in the materials before the court and argument would not

aid the decisional process.



                                                        DISMISSED




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