US v. Selvin Najera

Filing

UNPUBLISHED PER CURIAM OPINION filed. A certificate of appealability is denied. Originating case number: 7:12-cr-00066-GEC-RSB-2, 7:16-cv-81183-GEC-RSB. Copies to all parties and the district court/agency [1000016541]. Mailed to: Selvin Dario Najera. [16-7236]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7236

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SELVIN DARIO NAJERA,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief District
Judge. (7:12-cr-00066-GEC-RSB-2; 7:16-cv-81183-GEC-RSB)

Submitted:

January 31, 2017

Decided:

February 3, 2017

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam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

Selvin Dario Najera, Appellant Pro Se. Ronald Andrew Bassford,
Assistant United States Attorney, Laura Day Rottenborn, OFFICE OF
THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Selvin Dario Najera seeks to appeal the district court’s order
denying and dismissing his “Motion Pursuant to 28 U.S.C. § 2255
[(2012)],” in which he sought a reduced sentence based on Amendment
794 to the Sentencing Guidelines.

The district court dismissed

without prejudice the request for § 2255 relief, construed the
motion as one seeking a reduction in sentence under 18 U.S.C.
§ 3582(c) (2012), and denied that motion.
With respect to the portion of the court’s order denying
Najera’s effort to receive a sentence reduction under § 3582(c),
we

have

reviewed

the

record

and

find

no

reversible

error.

Accordingly, we affirm this portion of the district court’s order
for the reasons stated by the district court. United States v.
Najera, No. 7:12-cr-00066-GEC-RSB-2 (W.D. Va. Sept. 1, 2016).
The portion of the district court’s order dismissing without
prejudice Najera’s 28 U.S.C. § 2255 motion is not appealable unless
a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B) (2012).

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) (2012).

When the

district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would find
that the district court’s assessment of the constitutional claims
is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484
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(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the motion states a debatable claim
of the denial of a constitutional right.

Slack, 529 U.S. at 484-

85.
We have independently reviewed the record and conclude that
Najera has not made the requisite showing.

Accordingly, we deny

a certificate of appealability and dismiss the appeal in part.

We

dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and
argument would not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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