UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4507

MICHAEL TRACY HARMON, a/k/a

Mike, a/k/a Mickey,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4508

MICHAEL TRACY HARMON, 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No. 00-4507 dismissed and No. 01-4508 affirmed by unpublished per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Unpublished opinions are not binding precedent in this circuit.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 entered

on 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 evidentiary

hearing 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 UNITED STATES v. HARMON
Turning 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 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. 

No. 00-4507 - DISMISSED

No. 01-4508 - AFFIRMED

UNITED STATES v. HARMON 3