United States v. Prescott

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 98-7824

JOHN FITZGERALD PRESCOTT, Defendant-Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-95-323-PJM, CA-98-2131-PJM)

Submitted: March 25, 1999

Decided: April 5, 1999

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

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

John Fitzgerald Prescott, Appellant Pro Se. Andrew Clayton White, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION

PER CURIAM:

John Fitzgerald Prescott appeals from the district court's orders denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), and denying his Fed. R. Civ. P. 59(e) motion to alter or amend the judgment. The district court denied the Rule 59(e) motion as moot, apparently believing that Prescott's notice of appeal deprived it of authority to act on the motion. However, the appeal is not prop- erly before this court until the district court has ruled on the Rule 59(e) motion. Accordingly, we grant a certificate of appealability as to the order denying Prescott's Rule 59(e) motion, vacate said order, and remand to the district court for a ruling on the Rule 59(e) motion. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED