UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-6362



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DAVID IVORY AUSTIN,

                                            Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Margaret B. Seymour, District
Judge. (CR-98-469; CA-02-411-24-6)


Submitted:   July 23, 2004            Decided:   September 10, 2004


Before LUTTIG, KING, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Ivory Austin, Appellant Pro Se. Alan Lance Crick, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David Ivory Austin seeks to appeal the district court’s

order denying relief on his motion filed under 28 U.S.C. § 2255

(2000). We dismiss the appeal for lack of jurisdiction because the

appeal was not timely filed.

            Federal Rule of Appellate Procedure 3 conditions federal

appellate jurisdiction on the filing of a timely notice of appeal.

When the United States is a party, a notice of appeal must be filed

no more than sixty days after entry of the district court’s

judgment, 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., 

, 267 (1978) (quoting United States v.

Robinson, 

, 229 (1960)).

            The district court’s order was entered on December 24,

2003.    The notice of appeal was filed on February 24, 2004, or the

sixty-first day after the district court’s order was entered.*

Because Austin 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


     *
      For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date the notice
could have been properly delivered to prison officials for mailing
to the court. See Fed. R. App. P. 4(c); Houston v. Lack, 

 (1988).

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legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                       DISMISSED




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