UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6175


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

RODNEY MAURICE SAUNDERS,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:04-cr-00406-WDQ-1; 1:08-cv-00874-WDQ)


Submitted:    April 8, 2009                     Decided:   May 26, 2009


Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Remanded by unpublished per curiam opinion.


Rodney Maurice Saunders,      Appellant     Pro Se.    Paul M. Tiao,
Assistant United States       Attorney,     Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Rodney Maurice Saunders seeks to appeal the district

court’s     order     denying       relief      on     his      28    U.S.C.A.        § 2255

(West 2007) motion.          The district court’s order was entered on

September 2, 2008.           Saunders’ notice of appeal was filed on

January 26, 2009. *        In his notice of appeal, Saunders states that

he did not receive notice of the district court’s order until

January 26, 2009.

            Where the United States is a party to a civil action,

the   parties   are    accorded       sixty     days      after      the   entry     of   the

district court’s final judgment or order to note an appeal, 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. Dir., Dep’t of

Corr.,    

,     264    (1978)        (quoting        United    States     v.

Robinson,    

,    229    (1960));       see     Bowles      v.    Russell,

____, 

, 2366 (2007).

            Saunders’       notice     of       appeal       is      clearly       untimely.

However, under Rule 4(a)(6), the district court may reopen the

      *
       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)(1); Houston v. Lack,

 (1988).



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time to file an appeal if: (1) the moving party did not receive

notice of the entry of the order within twenty-one days after

entry; (2) the motion is filed within 180 days of entry of the

judgment or order or within seven days of receiving notice from

the   court,   whichever   is   earlier;   and    (3)   no   party   would   be

prejudiced.     We   accordingly   remand    to   the   district     court   to

determine whether Saunders is entitled under Rule 4(a)(6) to the

reopening of the appeal period.            The record, as supplemented,

will then be returned to this court for further consideration.



                                                                     REMANDED




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