United States v. Monroe

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-7339

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSEPH MONROE,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:94-cr-00041-nkm-4)

Submitted: August 19, 2008 Decided: September 8, 2008

Before MOTZ and TRAXLER, Circuit Judges, and WILKINS, Senior Circuit Judge.

Vacated and remanded with instructions by unpublished per curiam opinion.

Joseph Monroe, Appellant Pro Se. Julie C. Dudley, Assistant United States Attorney, Roanoke, Virginia; Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Joseph Monroe appeals the district court’s order denying

his motion to reconsider the 360-month sentence imposed after a

jury convicted him in 1995 of drug-related offenses. Because the

motion to reconsider attacked the validity of his sentence rather

than any alleged defect in the collateral review process, the

motion amounted to a successive motion under 28 U.S.C. § 2255

(2000), that the district court lacked jurisdiction to consider.*

See United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003);

see also Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005)

(explaining differentiation between true motion filed pursuant to

Fed. R. Civ. P. 60(b), and unauthorized successive habeas corpus

petition). Accordingly, we vacate the court’s order and remand

with instructions to dismiss Monroe’s motion to reconsider for lack

of jurisdiction. See Winestock, 340 F.3d at 208-09.

We deny Monroe’s motion to appoint counsel and motion to

remand for resentencing. 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 WITH INSTRUCTIONS

* Monroe may file in the district court a motion to reduce his sentence under 18 U.S.C.A. § 3582(c) (West 2000 & Supp. 2008).