                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6828



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


FORREST STEPHEN BLACK,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. N. Carlton Tilley,
Jr., Chief District Judge. (CR-90-277; CA-03-620-1)


Submitted:   September 29, 2004           Decided:   October 19, 2004


Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Forrest Stephen Black, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

           Forrest    Stephen     Black    seeks   to    appeal   the    district

court’s order accepting the recommendation of the magistrate judge

and dismissing his motion for resentencing.              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

February 20, 2004.     The notice of appeal was filed on May 4, 2004.*

Because Black failed to file a timely notice of appeal or to obtain

an   extension   or   reopening    of     the   appeal    period,   we    deny   a

certificate of appealability and dismiss the appeal.                     We grant

Black’s motion to amend his informal brief and deny his motion to


      *
      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).

                                    - 2 -
place this case in abeyance as moot.        Finally, 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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