United States v. McDonald

60 F. App'x 515

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 15, 2003
• Docket: 02-6364
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Donovan McDonald seeks to appeal the district court’s order denying his motion under 18 U.S.C.A. § 3582 (West 2002), which the district court construed as McDonald’s first motion under 28 U.S.C.A. § 2255 (West Supp.2001). The district court did not have the benefit of our recent decision in United States v. Emmanuel, 288 F.3d 644 (4th Cir.2002), when it re-characterized McDonald’s filing as his first § 2255 motion. Thus, we grant a certificate of appealability, vacate the district court’s orders, and remand in light of Emmanuel for the district court to provide McDonald with notice of its intention to recharacterize his Sling and an opportunity for him to respond by proceeding with the recharacterization to a § 2255 motion * or by electing to have the district court address the merits of the § 3582 motion as filed. See id. at 648. 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.

VACATED AND REMANDED.

* If McDonald chooses this route, we express no opinion on the timeliness of the motion or the claims McDonald may seek to raise through amendment. See 28 U.S.C.A. § 2255; Hill v. Braxton, 277 F.3d 701 (4th Cir.2002); United States v. Pittman, 209 F.3d 314 (4th Cir.2000).