UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-6376

LEROY BOONE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-90-149-N, CA-96-372-2)

Submitted: March 7, 2000

Decided: March 22, 2000

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Leroy Boone, Appellant Pro Se. John Paul Corcoran, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Leroy Boone appeals from the dismissal of his 28 U.S.C.A. § 2255
(West Supp. 1999) motion. Because Boone's notice of appeal was
received in the district court after the appeal period, we remanded to
the district court and instructed the district court to obtain information
regarding the date that Boone delivered his notice of appeal to prison
officials and to determine whether any of Boone's filings should have
been construed as a motion to extend the time to appeal. See Houston
v. Lack, 487 U.S. 266 (1988) (notice considered filed as of the date
Appellant delivers it to prison officials for forwarding to the court).

On remand, the district court issued an order finding that Boone's
appeal was not timely filed and that Boone did not file a motion for
an extension. An appellate court cannot disregard a district court's
factual findings absent clear error. A finding is"clearly erroneous"
when the reviewing court "is left with the definite and firm conviction
that a mistake has been committed." United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948). Based on our review of the
record, we find that the district court did not clearly err in finding that
Boone's notice of appeal was untimely and that Boone did not file a
motion to extend.

Boone's failure to note a timely appeal or to obtain either an exten-
sion or a reopening of the appeal period leaves this court without
jurisdiction to consider the merits of Boone's appeal. 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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