                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 02-6104
DARRELL ANTHONY RATHBURN,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Western District of North Carolina, at Asheville.
               Lacy H. Thornburg, District Judge.
                     (CR-99-91, CA-01-300)

                       Submitted: July 31, 2002

                      Decided: September 3, 2002

     Before WILLIAMS and TRAXLER, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                             COUNSEL

Darrell Anthony Rathburn, Appellant Pro Se. Kenneth Davis Bell,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
2                    UNITED STATES v. RATHBURN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   On May 10, 2000, a jury convicted Darrell Anthony Rathburn of
seven counts of wilfully depriving various individuals of their consti-
tutional rights under color of law in his capacity as Chief of Police
of Woodfin, North Carolina, in violation of 18 U.S.C.A. § 242 (West
2000). He was sentenced on February 28, 2001, to thirty-seven
months active incarceration. On December 11, 2001, Rathburn filed
a motion for a new trial pursuant to Rule 33 of the Federal Rules of
Criminal Procedure, contending the district court should order a new
trial based on "new evidence" of ineffective assistance of counsel.

   The district court denied Rathburn’s Rule 33 motion as untimely.
Furthermore, the district court, without notice to Rathburn, construed
his motion as a motion under 28 U.S.C.A. § 2255 (West Supp. 2002),
and denied § 2255 relief. Rathburn noted a timely appeal of this order.
We affirm in part, vacate in part, and remand.

   On appeal, Rathburn contends his Rule 33 motion was timely filed.
A Rule 33 motion "predicated on ineffective assistance of counsel
must be brought, if at all, within seven days of judgment regardless
of when the defendant becomes aware of the facts" on which he
relies. United States v. Smith, 62 F.3d 641, 648 (4th Cir. 1995).
Because Rathburn did not file his Rule 33 motion claiming ineffective
assistance of counsel within seven days of judgment, the district court
correctly found that such a motion was untimely. Accordingly, as to
that portion of the district court’s order, we affirm.

   Rathburn also claims that the district court erred when it character-
ized his Rule 33 motion as a § 2255 motion without providing him
notice or an opportunity to respond. The district court did not have the
benefit of our decision in United States v. Emmanuel, 288 F.3d 644
(4th Cir. 2002). In Emmanuel, we held a district court must give the
                     UNITED STATES v. RATHBURN                      3
movant notice of its intent to characterize a motion as a § 2255
motion and an opportunity to respond. Because the district court did
not provide Rathburn notice and an opportunity to respond, and
because Rathburn’s ability to file a future § 2255 motion would be
foreclosed by the district court’s sua sponte construction of his Rule
33 motion as a § 2255 motion, we grant a certificate of appealability
on this issue, vacate the district court’s order denying Rathburn
§ 2255 relief, and remand the case for further proceedings consistent
with our decision in Emmanuel.

   We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                   AFFIRMED IN PART, VACATED
                                      IN PART, AND REMANDED
