                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-7690



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JUSTIN HAWKINS,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-98-16)


Submitted:   August 3, 2005            Decided:   September 27, 2005


Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Justin Hawkins, Appellant Pro Se.     Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Justin Hawkins seeks to appeal the district court’s order

construing his motion filed under Fed. R. Civ. P. 60(b) as a

successive motion under 28 U.S.C. § 2255 (2000), and dismissing it

for lack of jurisdiction.          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

August 11, 2003.*    Because the record did not reveal when Hawkins

delivered his notice of appeal to prison officials for mailing, we

remanded this case to the district court.             See Fed. R. App. P.

4(c)(1); Houston v. Lack, 487 U.S. 266 (1988).          The district court

found that Hawkins filed his notice of appeal, at the earliest, on

October 16, 2003--six days after the appeal period expired.                 Our



     *
      The order     was   signed   on   August   7,   2003,   and   filed    on
August 8, 2003.

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review of the record leads us to conclude that the district court’s

factual finding is not clearly erroneous.          Because Hawkins filed

his notice of appeal beyond the sixty-day appeal period and failed

to obtain an extension or reopening of such period, we deny a

certificate of appealability and 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




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