UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6720
DOUGLAS HAYTH BREWBAKER,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:06-cv-00016-REM-JSK)
Submitted: December 11, 2008 Decided: December 17, 2008
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Douglas Hayth Brewbaker, Appellant Pro Se. Alan Gordon
McGonigal, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Hayth Brewbaker seeks to appeal the district
court’s order adopting the magistrate judge’s report and
recommendation and dismissing his claim that restitution should
be deferred until he is on supervised release. 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 September 21, 2006. The notice of appeal appears to have
been postmarked April 25, 2008, and was filed on May 1, 2008. *
Because Brewbaker failed to file a timely notice of appeal or to
*
For the purpose of this appeal, we assume that the date
appearing on the postmark is the earliest date it could have
been properly delivered to prison officials for mailing to the
court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).
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obtain an extension or reopening 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.
DISMISSED
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