UNPUBLISHED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
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICE BEHANZIN WILSON,
Defendant - Appellant.
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No. 05-7158 Affirmed, No. 05-7643 dismissed by unpublished per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Unpublished opinions are not binding precedent in this circuit.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).
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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
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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
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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
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