UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-7803

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDWARD DEVON SINGLETARY,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, Senior

District Judge. (CR-00-314; CA-03-240-1)

Submitted: October 11, 2006 Decided: November 16, 2006

Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Edward Devon Singletary, Appellant Pro Se. Robert Albert Jamison

Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*Because the sixtieth day fell on Saturday, September 27,

2003, Singletary had until Monday, September 29, to timely file his

notice of appeal. See Fed. R. App. P. 26(a)(3).

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PER CURIAM:

Edward Devon Singletary seeks to appeal the district

court’s order denying his motion filed pursuant to 28 U.S.C. § 2255

(2000). 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. Dir., 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

July 29, 2003. The sixty-day appeal period expired on

September 29, 2003,* and the excusable neglect period expired on

October 29, 2003. The first time Singletary’s appeal was before us

we construed a statement in Singletary’s notice of appeal to be a

motion for an extension of time under Rule 4(a)(5) and remanded for

the district court to determine whether Singletary timely filed the

motion. See United States v. Singletary, 88 F. App’x 652 (4th Cir.
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2004). On remand, the magistrate judge found that Singletary

deposited his Rule 4(a)(5) motion in the prison’s legal mail box no

earlier than Friday, October 31, 2003, two days after the excusable

neglect period expired, and, thus, that the appeal period could not

be extended. 

Upon further review, we remanded the case for a second

time to provide the parties time to object to the magistrate

judge’s findings and to give the district court an opportunity to

conduct the appropriate review. See United States v. Singletary,

160 F. App’x 333 (4th Cir. 2006). After reviewing Singletary’s

objections, the district court accepted the magistrate judge’s

finding that Singletary’s motion for an extension of time to appeal

under Rule 4(a)(5) was not timely filed. Our review of the record

leads us to conclude that the district court’s finding is not

clearly erroneous. 

Because Singletary filed his notice of appeal after the

appeal and excusable neglect periods expired and failed to obtain

an extension or reopening of the appeal period, we 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