US v. Cepeda

Filing 920070221

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6788

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus FAUSTO CEPEDA, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:93-cr-00128-JRS; 3:06-cv-00229-JRS)

Submitted: February 15, 2007

Decided:

February 21, 2007

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Fausto Cepeda, Appellant Pro Se. Charles Philip Rosenberg, United States Attorney, Alexandria, Virginia, David T. Maguire, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Fausto Cepeda seeks to appeal the district court's order treating his motion to preserve review of sentencing error filed under Fed. R. Evid. 201(d) as a successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on that basis. The order is 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 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 would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 68384 (4th Cir. 2001). conclude that We have independently reviewed the record and has not made the requisite showing.

Cepeda

Accordingly, we deny a certificate of appealability and dismiss the appeal. 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. DISMISSED

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