UNITED STATES of America, Plaintiff - Appellee, v. Justin HAWKINS, Defendant-Appellant, 149 F. App'x 210

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., 484 U.S. 257, 264, 98 S. Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (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 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 The order was signed on August 7, 2003, and filed on August 8, 2003.