UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6985
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH B. KUBINSKI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Fayetteville. Malcolm J. Howard, Dis-
trict Judge. (CR-93-28-H, CA-97-973-5-H)
Submitted: June 15, 2001 Decided: June 28, 2001
Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Neal Lawrence Walters, Charlottesville, Virginia, for Appellant.
Robert Edward Skiver, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenneth B. Kubinski seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.
2000). In a supplemental brief, he asserts claims that the Gov-
ernment failed to disclose exculpatory material as required by
Brady v. Maryland, 373 U.S. 83 (1963); that the trial court failed
to instruct the jury in accordance with Richardson v. United
States, 526 U.S. 813 (1999), regarding the continuing criminal
enterprise count; and that his sentence violates Apprendi v. New
Jersey, 530 U.S. 466 (2000). We have reviewed the record and the
district court’s opinion and find no reversible error as to its de-
nial of relief on Kubinski’s claim under Brady. We decline to con-
sider Kubinski’s claims under Richardson and Apprendi,* presented
for the first time on appeal. See Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993). Accordingly, we deny a certificate of
appealability and dismiss the appeal. United States v. Kubinski,
Nos. CR-93-28-H; CA-97-973-5-H (E.D.N.C. July 1, 1999). We dis-
pense 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
*
We recently held in United States v. Sanders, 247 F.3d 139
(4th Cir. 2001), that the new rule announced in Apprendi is not
retroactively applicable to cases on collateral review. Accord-
ingly, Kubinski’s Apprendi claim is not cognizable.
2