UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6493
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN RAY FOWLER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Irene M. Keeley, Chief
District Judge; W. Craig Broadwater, District Judge. (CR-95-11;
CR-95-12)
Submitted: June 9, 2005 Decided: June 17, 2005
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kevin Ray Fowler, Appellant Pro Se. Thomas Oliver Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On or about March 24, 2005, Kevin Ray Fowler filed a
notice of appeal from his December 16, 1996, criminal judgment.
Because Fowler previously filed an appeal from his 1996 judgment
and this Court disposed of the appeal by affirming Fowler’s
convictions and sentence, this Court is without jurisdiction to
entertain a second appeal from the same judgment. In addition,
this court does not have jurisdiction because the appeal is clearly
untimely as to the December 16, 1996, judgment. See Fed. R. App.
P. 4(b)(1). Accordingly, the appeal is dismissed.
Fowler seeks a review of his sentence based upon the
rules announced in United States v. Booker, 125 S. Ct. 738 (2005)
and Blakely v. Washington, 124 S. Ct. 2531 (2004). If Fowler were
to seek relief from his sentence in a 28 U.S.C. § 2255 (2000)
motion, he would need authorization from this court pursuant to 28
U.S.C. §§ 2244 and 2255 because he previously unsuccessfully sought
§ 2255 relief. Construing his notice of appeal as a motion for
authorization, we deny authorization because neither Booker nor
Blakely announced a new rule of constitutional law made retroactive
by the Supreme Court to cases on collateral review.
Accordingly, we 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.
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DISMISSED
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