                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      January 12, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-41737
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                           JUAN ESTRADA, JR.,

                                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 2:00-CR-298-1
                        --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Juan Estrada, Jr., federal prisoner # 17623-079, was convicted

of possession with intent to distribute marijuana and was sentenced

to 96 months in prison.      Estrada filed a 28 U.S.C. § 2255 motion,

which the district court denied.           Estrada subsequently filed a

“MOTION FOR RELIEF FROM JUDGMENT AND TO REINSTATE PETITIONER’S

ORIGINAL CLAIMS PURSUANT TO FED. R. CIV. P. RULE 60(b)(2),” in

which he argued that under Blakely v. Washington, 542 U.S. 296

(2004), the district court violated his Sixth Amendment rights when



     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
it enhanced his sentence based on facts that were not admitted by

him or found by a jury.    The district court construed the motion as

a second or successive 28 U.S.C. § 2255 motion filed without this

court’s    authorization   and   dismissed       the   motion    for    lack    of

jurisdiction.

     On appeal, Estrada argues the merits of his Blakely claim.

Liberally construed, Estrada’s appellate briefs also assert that he

intended to file his motion pursuant to FED. R. CIV. P. 60(b)(4),

rather than FED. R. CIV. P. 60(b)(2), and they challenge the

district   court’s    construction    of   his    motion    as     a   second   or

successive 28 U.S.C. § 2255 motion filed without this court’s

authorization.        However,       Estrada’s         challenge       to       the

constitutionality of his sentence is properly classified as an

attempt to file a second or successive 28 U.S.C. § 2255 motion,

regardless whether it was filed pursuant to FED. R. CIV. P. 60(b)(2)

or FED. R. CIV. P. 60(b)(4).     See Fierro v. Johnson, 197 F.3d 147,

151 (5th Cir. 1999); United States v. Rich, 141 F.3d 550, 551-53

(5th Cir. 1998).     There is no indication in the record that Estrada

requested this court’s permission to file a second or successive

28 U.S.C. § 2255 motion before filing his motion, and Estrada does

not contend that he has done so.           See §§ 2244(b)(3)(A), 2255.

Therefore, the district court did not abuse its discretion in

denying Estrada’s motion.     See McCorvey v. Hill, 385 F.3d 846, 848

(5th Cir. 2004).

     AFFIRMED; REQUEST FOR APPOINTMENT OF COUNSEL DENIED.

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