United States v. Wilson

175 F. App'x 607

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7158

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PATRICE BEHANZIN WILSON,

Defendant - Appellant.

No. 05-7643

Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (CR-96-34)

Submitted: April 27, 2006 Decided: May 3, 2006 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

No. 05-7158 Affirmed, No. 05-7643 dismissed by unpublished per curiam opinion.

Patrice Behanzin Wilson, Appellant Pro Se. John Samuel Bowler, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

- 2 - PER CURIAM:

In Appeal No. 05-7158, Patrice Behanzin Wilson appeals

the district court’s margin order denying his motion to modify his

sentence under 18 U.S.C. § 3582(c)(1)(B) (2000). In his motion,

Wilson argued that his sentence exceeds the maximum sentence

permissible based upon a conviction for an unspecified quantity of

drugs and that he is entitled to relief under United States v.

Booker, 543 U.S. 220 (2005). Wilson’s claims are not cognizable

under § 3582(c)(1)(B). Wilson’s motion essentially constitutes a

collateral attack on his original sentence, for which he would need

to submit an application to file a second or successive 28 U.S.C.

§ 2255 motion. Accordingly, we affirm the court’s order denying

relief.

In Appeal No. 05-7643, Wilson seeks to appeal the

district court’s margin order denying his Fed. R. Civ. P. 60(b)(3)

motion relieving the Government from final judgment and a

subsequent margin order denying his motion for reconsideration.

The orders are not appealable unless a circuit justice or judge

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)

(2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A

certificate of appealability will not issue for claims addressed by

a district court absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner

satisfies this standard by demonstrating that reasonable jurists

- 3 - would find both that the district court’s assessment of his

constitutional claims is debatable or wrong and that any

dispositive procedural rulings by the district court are also

debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336

(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,

252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed

the record and conclude that Wilson has not made the requisite

showing.

Although the district court did not state its reasons for

the denial of the Rule 60(b) motion, we find that the motion is

best construed as a successive § 2255 motion, and was therefore

properly denied. See United States v. Winestock, 340 F.3d 200, 206

(4th Cir. 2003) (noting that a district court has no discretion to

rule on a Rule 60(b) motion that is functionally equivalent to a

successive application). We deny a certificate of appealability

and dismiss the appeal. Additionally, we construe Wilson’s notice

of appeal and informal brief on appeal as an application to file a

second or successive motion under 28 U.S.C. § 2255. Id. at 208.

In order to obtain authorization to file a successive § 2255

motion, a prisoner must assert claims based on either: (1) a new

rule of constitutional law, previously unavailable, made

retroactive by the Supreme Court to cases on collateral review; or

(2) newly discovered evidence that would be sufficient to establish

by clear and convincing evidence that no reasonable factfinder

- 4 - would have found the petitioner guilty of the offense. 28 U.S.C.

§§ 2244(b)(2), 2255 (2000). Wilson’s claims do not satisfy either

of these conditions. We therefore deny authorization to file a

successive § 2255 motion.

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.

No. 05-7158: AFFIRMED No. 05-7643: DISMISSED

- 5 -