                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 1, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-30044
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                              versus

                        SYLVESTER TOLLIVER,

                       Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
               for the Western District of Louisiana
                     USDC No. 2:92-CR-20008-1
                        --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Sylvester Tolliver, federal prisoner # 24806-013, appeals from

the district court’s denial of his FED. R. CIV. P. 60(b)(6) motion.

In his motion, Tolliver argued that his 1996 post-conviction

“motion to dismiss 18 U.S.C. § 924(c)(1),” i.e., count three of his

indictment, was improperly recharacterized as a 28 U.S.C. § 2255

motion in violation of Castro v. United States, 540 U.S. 375

(2003).   Because the Rule 60(b) motion does not seek to challenge

the underlying offense of conviction, the district court had


     *
       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this opinion should not be published and is not precedent except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.
                                      No. 05-30044
                                           -2-

jurisdiction to deny the motion.               See Hess v. Cockrell, 281 F.3d

212, 214-15 (5th Cir. 2002); cf. Fierro v. Johnson, 197 F.3d 147,

151 (5th Cir. 1999).           Because Tolliver’s Rule 60(b) motion should

not be construed as a successive § 2255 motion, the effect of the

ruling in Castro on Tolliver’s initial motion is not relevant.

       We review the district court’s denial of Tolliver’s Rule

60(b)(6) motion for abuse of discretion. See Dunn v. Cockrell, 302

F.3d 491, 492 (5th Cir. 2002).              The record reflects that vacating

the district court’s recharacterization of Tolliver’s 1996 motion

to dismiss as a § 2255 motion would result in the withdrawal of

relief that the court had granted Tolliver.                     Further, Tolliver’s

Rule 60(b)(6) motion was filed eight years after the district court

recharacterized his 1996 motion to dismiss.                      Tolliver fails to

demonstrate        why   his    dilatory    Rule     60(b)(6)    motion    should   be

considered filed within a reasonable period of time. See Travelers

v. Liljeberg Enters. Inc., 38 F.3d 1404, 1410 (5th Cir. 1994).

Accordingly, the district court did not abuse its discretion in

denying Tolliver’s Rule 60(b)(6) motion.                    See Dunn, 302 F.3d at

492.

       For   the    first      time   on   appeal,    Tolliver    argues    that    the

district court abused its discretion in denying his motion under

Rule   60(b)(5).         This    argument     will    not   be   considered.        See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999).

       AFFIRMED.
