                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-8034




UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


 BILLY EUGENE PROFFITT, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:04-cr-00043-10)


Submitted: June 29, 2007                      Decided:   July 12, 2007


Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Billy Eugene Proffitt, Jr., Appellant Pro Se. Jill Westmoreland
Ross, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Billy Eugene Proffitt, Jr., appeals the district court’s

orders construing his pleading as a notice of appeal, dismissing

the notice as untimely, and denying his motion for reconsideration.

Finding no reversible error, we affirm.

            Proffitt pled guilty to and was sentenced to 190 months’

imprisonment for participation in a conspiracy to manufacture and

possess with intent to distribute methamphetamine.                        Proffitt’s

sentence    was   imposed     on    May    10,     2005,    and   we   affirmed     his

conviction and sentence on appeal.                See United States v. Proffitt,

2006   WL    870586    (4th        Cir.     March     29,     2006)(No.        05-4532)

(unpublished).

            On September 18, 2006, Proffitt filed a letter in the

district court requesting his appeal be “reentered.”                    The district

court issued an order in accordance with United States v. Emmanuel,

288 F.3d 644, 649 (4th Cir. 2002), giving Proffitt notice and

opportunity to respond before the court construed the letter as an

initial 28 U.S.C. § 2255 (2000) motion.                    Proffitt responded that

he was attempting to re-appeal his conviction to this court and

requested   an    extension    of    the     appeal    period.         Thus,   because

Proffitt objected to characterization of his pleading as a § 2255

motion, the district court properly filed the letter as a notice of

appeal as requested.        See Emmanuel, 288 F.3d at 649.




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      In a criminal case, a defendant must file his notice of appeal

within ten days after entry of the district court’s final judgment.

Fed. R. App. P. 4(b)(1)(A)(i).            With or without a motion, the

district court may extend the time to file a notice of appeal for

an additional thirty days upon a finding of excusable neglect or

good cause.    Fed. R. App. P. 4(b)(4); United States v. Reyes, 759

F.2d 351, 353 (4th Cir. 1985).      When the notice of appeal is filed

more than thirty days after expiration of the appeal period,

neither the district court nor this court may grant an extension of

time to appeal.     United States v. Schuchardt, 685 F.2d 901, 902

(4th Cir. 1982); see Fed. R. App. P. 26(b)(1).          The appeal periods

established by Rule 4 are mandatory and jurisdictional. Browder v.

Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978).

      Proffitt’s filing on September 18, 2006, is well outside both

the   appeal   period   and   excusable    neglect   period.   Though   the

district court should have left the assessment of the timeliness of

Proffitt’s appeal to this court, we construe the court’s order as

implicity denying Proffitt’s request for an extension of time to

appeal his conviction.

      Clearly, there is no basis for jurisdiction over any attempt

by Proffitt to re-appeal his 2005 conviction and sentence.          Thus,

he was not entitled to an extension of time in which to note such

an appeal.     Accordingly, we affirm the district court’s order

construing Proffitt’s filing as a notice of appeal and implicitly


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denying an extension of time to file it.       We also affirm the

court’s order denying Proffitt’s motion for reconsideration.    We

further deny as unnecessary Proffitt’s motion for a certificate of

appealability.   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.



                                                          AFFIRMED




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