                              UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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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