UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6861



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MICHAEL BERRY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
00-493; CA-03-1599)


Submitted:   February 6, 2006          Decided:     February 27, 2006


Before WILLIAMS, MOTZ, and KING, Circuit Judges.


Remanded by unpublished per curiam opinion.


Michael Berry, Appellant Pro Se. Lynne Ann Battaglia, OFFICE OF
THE UNITED STATES ATTORNEY, Angela R. White, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Michael Berry seeks to appeal the district court’s order

denying his 28 U.S.C. § 2255 (2000) motion.     The district court

docket sheet does not reflect that Berry filed a timely notice of

appeal.    However, Berry filed a motion on January 31, 2005,

requesting that the district court apprise him of the status of his

appeal.   The district court responded that a notice of appeal had

not been entered on the docket.   Berry again filed a motion on May

24, 2005, requesting that the district court apprise him of the

status of his appeal and certificate of appealability.       Berry

attached a copy of a notice of appeal, which was dated “November

2004.”

          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.

See Fed. R. App. P. 4(a)(1)(B).    This appeal period is mandatory

and jurisdictional.   See Browder v. Dir., Dep’t of Corr., 

, 267 (1978) (quoting United States v. Robinson, 

,

229 (1960)). Since the district court entered the judgment against

Berry on October 29, 2004, he had until December 28, 2004, to file

a timely notice of appeal.

          Because Berry is incarcerated, his notice of appeal is

deemed filed when it is submitted to prison officials for mailing,

in accordance with Houston v. Lack, 

 (1988).        To


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demonstrate that he timely filed under this rule, Berry must either

submit    a   notarized   statement    setting   forth   the   date   that   he

deposited      the   notice   of   appeal     with   prison    officials     or,

alternatively, submit a declaration in compliance with 28 U.S.C.

§ 1746 (2000).       Fed. R. App. P. 4(c)(1).1

              Berry’s statement in his notice of appeal attached as an

exhibit does not comport with the requirements of Rule 4(c)(1) and

28 U.S.C. § 1746, as it is not notarized, makes no reference to the

potential penalty for perjury, and is not specifically dated.

Although Berry’s certificate of service on the notice of appeal

that he attached to his May 2005 motion is inadequate, it may not

be an accurate representation of the final product sent to the

court.2

              We remand this case to the district court for further

proceedings to determine if Berry in fact filed a document with the

district court in November 2004 that could be construed as a timely

notice of appeal.         If Berry did not file such a document, the



     1
      Under 28 U.S.C. § 1746(2), an inmate must execute a statement
that a timely notice of appeal was deposited in the prison mail
system in substantially the following form: “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is
true and correct. Executed on (date). (Signature).” Under Rule
4(c)(1), the inmate must comply with § 1746 or provide a notarized
statement setting forth the same general information as is required
under § 1746.
     2
      If Berry’s statement is true that he gave his notice of
appeal to prison authorities in November 2004, the notice of appeal
would have been timely filed regardless of the date.

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district court should consider whether the January 31, 2005 motion

to apprise him of the status of his appeal should be construed as

a timely motion for an extension of time to file a notice of

appeal, and if so, whether it should be granted.

              We therefore remand the case for the district court to

determine whether Berry filed a timely notice of appeal. The

record, as supplemented, will then be returned to this court for

further consideration.       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.



                                                                      REMANDED




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