### UNPUBLISHED



# UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT



#  U NITED S TATES OFA MERICA ,

Plaintiff-Appellee,

v. No. 00-4507



# 
M ICHAEL T RACY H ARMON , a/k/a Mike, a/k/a Mickey,

Defendant-Appellant. 

# 

 U NITED S TATES OFA MERICA ,

Plaintiff-Appellee,

v. No. 01-4508



# 
M ICHAEL T RACY H ARMON , a/k/a Mike, a/k/a Mickey,

Defendant-Appellant. 

# 

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca B. Smith, District Judge.

(CR-99-23) Submitted: December 19, 2001 Decided: February 12, 2002 Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

No. 00-4507 dismissed and No. 01-4508 affirmed by unpublished per curiam opinion.COUNSEL Matthew D. Pethybridge, CARR & PORTER, L.L.C., Portsmouth,Virginia, for Appellant. Paul J. McNulty, United States Attorney, Fernando Groene, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

OPINION
PER CURIAM: In this consolidated appeal, Michael Tracy Harmon appeals from the district court’s order denying his motion to reinstate his appellate rights. Harmon also seeks to appeal his criminal conviction enteredon his guilty plea to possession with intent to distribute methamphetamine and a related conspiracy charge. See 21 U.S.C. § 841(a)(1) (1994); 21 U.S.C. § 846 (1994). In his motion to reinstate his appellate rights, Harmon alleged that despite the fact that he instructed his attorney to file a timely notice of appeal, no such notice was filed. See United States v. Peak , 992 F.2d 39, 42 (4th Cir. 1993). Harmon’s direct criminal appeal is pending as a result of Harmon’s pro se filing of a document construed as a notice of appeal nearly eleven months after entry of the district court’s judgment in a criminal case. With respect to the district court’s denial of Harmon’s motion to reinstate his appellate rights, the district court held an evidentiaryhearing to resolve the factual issues surrounding Harmon’s postjudgment instructions to his attorney and found that Harmon and his attorney agreed that an appeal would not be filed. We have reviewed the record and the district court’s opinion and find no reversible error. See United States v. Cheek , 94 F.3d 136, 140 (4th Cir. 1996) (citing Fed. R. Civ. P. 52(a)). Accordingly, we affirm on the reasoning of the district court. United States v. Harmon , No. CR-99-23 (E.D. Va. Apr. 25, 2001). 2 U NITED S TATES v. H ARMONTurning to Harmon’s direct criminal appeal, on the finding of the district court that Harmon did not instruct his attorney to file a timely notice of appeal, we are constrained to dismiss the appeal for lack of jurisdiction because Harmon’s pro se notice of appeal was not timely filed. Parties to a criminal proceeding are accorded ten days after entry of the district court’s final judgment to note an appeal, see Fed. R. App. P. 4(b)(1)(A), unless the district court extends the appeal period under Fed. R. App. P. 4(b)(4). This appeal period is "mandatory and jurisdictional." Browder v. Director, Dep’t of Corrections , 434 U.S. 257, 264 (1978) (quoting United States v. Robinson , 361 U.S. 220, 229 (1960)). The district court’s judgment was entered on the docket on August 9, 1999. Harmon’s notice of appeal was filed on June 30, 2000. Because Harmon failed to file a timely notice of appeal or to obtain an extension of the appeal period, we dismiss the appeal. We dispensewith 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.
No. 00-4507 - DISMISSED
No. 01-4508 - AFFIRMED 3 U NITED S TATES v. H ARMON