US v. Darrell Samuel

Filing 920090121

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7619

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRELL W. SAMUEL, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief District Judge. (3:94-cr-00773-JFA-1)

Submitted:

January 14, 2009

Decided:

January 21, 2009

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Darrell W. Samuel, Appellant Pro Se. Christopher Todd Hagins, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Darrell W. Samuel seeks to appeal the district court's order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp. 2008) motion, and dismissing it on that basis. He also appeals the court's order granting his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2006). The order denying his Rule 60(b) motion as successive is not appealable unless a circuit justice or judge issues a

certificate of appealability. Reid v. Angelone, of 369 F.3d

28 U.S.C. § 2253(c)(1) (2006); 363, 369 (4th not Cir. issue 2004). absent A "a

certificate

appealability

will

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2006). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

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, 683-84 (4th Cir. 2001). We have has independently not made reviewed the the record and

conclude

Samuel

requisite

showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal from court's denial of Samuel's Rule 60(b) motion.

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Additionally, and informal brief as

we an

construe

Samuel's to

notice file a

of

appeal or

application

second

successive motion under 28 U.S.C.A. § 2255.

United States v. In order to motion, a

Winestock, 340 F.3d 200, 208 (4th Cir. 2003). obtain authorization to file a successive

§ 2255

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, not previously discoverable by due

diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the movant guilty of the offense. 2008). 28 U.S.C.A. §§ 2244(b)(2), 2255 (West 2006 & Supp. Samuel's claims do not satisfy either of these criteria.

Therefore, we deny authorization to file a successive § 2255 motion. In addition, we find the district did not abuse its discretion granting Samuel's motion for a sentence reduction. United States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004)

(stating standard of review).

Insofar as Samuel suggests the

court could have considered an even lower sentence below the Guidelines sentencing range, this claim is foreclosed by United States v. Dunphy, __ F.3d __, 2009 WL 19139, *8 (4th Cir. 2009)

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("[A] district judge is not authorized to reduce a defendant's sentence below the amended guideline range."). Accordingly, we deny a certificate of appealability

and dismiss the appeal from the order denying the Rule 60(b) motion and we We affirm also the deny order granting motion Samuel for a sentence of

reduction. documents. legal before

Samuel's

production

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED IN PART; DISMISSED IN PART

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