UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-7771



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JUAN BAUTISTA ALOMIA-TORRES, a/k/a John, a/k/a Juan Baustista-
Alomia, a/k/a Luis Antonio Torres, a/k/a Edward Martinez,
a/k/a Luis Alfredo Martinez, a/k/a John the Jamaican,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:97-cr-00040-RLV-2)


Submitted:   July 31, 2008                 Decided:   August 4, 2008


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Juan Bautista Alomia-Torres, Appellant Pro Se. Robert Jack Higdon,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Juan Bautista Alomia-Torres seeks to appeal the district

court’s order construing his Fed. R. Civ. P. 60(b) motion as a

successive 28 U.S.C. § 2255 (2000) motion and dismissing it without

prejudice.    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.,

, 264 (1978) (quoting United States v. Robinson, 

, 229 (1960)).

          The district court’s order was entered on the docket on

April 20, 2006.    The notice of appeal was filed, at the earliest,

on October 22, 2007.*      Because Alomia-Torres failed to file a

timely notice of appeal or to 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


     *
      In accordance with Fed. R. App. P. 4(c)(1) and Houston v.
Lack, 

(1988), a prisoner’s notice of appeal is deemed
“filed” when it is deposited into the institution’s mail system.
Alomia-Torres’ notice of appeal is dated October 22, 2007, and we
conclude that this was the earliest date it could have been filed.

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presented in the materials before the court and argument would not

aid the decisional process.

                                                        DISMISSED




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