                              UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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