UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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. 28 U.S.C. § 2253(c)(1) (2006);
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) (2006). 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, 683-84 (4th
Cir. 2001). We have independently reviewed the record and
conclude Samuel has not made the 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, we construe Samuel’s notice of appeal
and informal brief as an application to file a second or
successive motion under 28 U.S.C.A. § 2255. United States v.
Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to
obtain authorization to file a successive § 2255 motion, a
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. 28 U.S.C.A. §§ 2244(b)(2), 2255 (West 2006 & Supp.
2008). 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 affirm the order granting Samuel a sentence
reduction. We also deny Samuel’s motion for production of
documents. 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.
AFFIRMED IN PART; DISMISSED IN PART
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