Brewbaker v. United States , 304 F. App'x 155 ( 2008 )


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  •                               UNPUBLISHED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    Dismissed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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).
    2
    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
    3
    

Document Info

Docket Number: 08-6720

Citation Numbers: 304 F. App'x 155

Judges: Niemeyer, Duncan, Agee

Filed Date: 12/17/2008

Precedential Status: Non-Precedential

Modified Date: 11/5/2024