              Vacated by Supreme Court, February 28, 2005




                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                 v.                               No. 03-4105
WILLIAM L. JOHNSON, a/k/a Buddy,
              Defendant-Appellant.
                                        
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Huntington.
              Joseph Robert Goodwin, District Judge.
                            (CR-02-148)

                      Submitted: August 28, 2003

                      Decided: October 17, 2003

       Before WIDENER and LUTTIG, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Remanded by unpublished per curiam opinion.


                             COUNSEL

Barron M. Helgoe, VICTOR VICTOR & HELGOE L.L.P., Charles-
ton, West Virginia, for Appellant. Kasey Warner, United States Attor-
ney, Miller A. Bushong, III, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
2                      UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   William L. Johnson pled guilty to distributing1 a quantity of
cocaine base (crack) on February 26, 2002 (Count Two of a four-
count indictment), 21 U.S.C. § 841(a) (2000), and was sentenced as
a career offender to a term of 151 months imprisonment. During the
appeal period, Johnson filed a pro se motion for reconsideration of his
sentence, alleging that his attorney had rendered ineffective assistance
in several respects in connection with the sentencing.2 The district
court dismissed the motion for lack of jurisdiction.

   Johnson contends on appeal that the court erred in dismissing his
motion to reconsider and also raises another claim of ineffective assis-
tance, arguing that his attorney was ineffective in failing to argue for
a downward departure based on his physical condition. U.S. Sentenc-
ing Guidelines Manual § 5H1.4, p.s. (2002).

   We are unable to determine on the record before us whether the
district court correctly dismissed Johnson’s motion to reconsider.
Judgment was entered on January 10, 2003. On January 16, 2003,
Johnson’s attorney filed a notice of appeal. The next day, January 17,
the court received and filed Johnson’s pro se motion for reconsidera-
tion and resentencing. The motion was undated. The envelope
    1
     The presentence report and the judgment and commitment order state
that Johnson pled guilty to aiding and abetting the distribution of crack,
but Count Two charged him with distribution.
   2
     Johnson asserted that his attorney had been ineffective in failing to
inform the sentencing court that the government had not filed a notice of
enhanced sentence under 21 U.S.C. § 851 (2000), and in failing to
request a downward departure based on the small quantity of drugs
involved in the instant offense and his prior offenses. Johnson also
alleged that his attorney had prevented him from arguing these mitigating
circumstances on his own behalf at sentencing.
                       UNITED STATES v. JOHNSON                        3
appeared to have been postmarked January 15 or 16, 2003. The dis-
trict court dismissed the motion on the ground that it lacked jurisdic-
tion to consider the motion because jurisdiction had transferred to the
appeals court when the notice of appeal was filed on January 16. See
United States v. Christy, 3 F.3d 765, 767 (4th Cir. 1993).

   However, the rule in Houston v. Lack, 487 U.S. 266 (1988) (pro se
notice of appeal deemed filed on date delivered to prison officials for
forwarding to court), applies to motions to reconsider. See United
States v. Duke, 50 F.3d 571, 575 (8th Cir. 1995). Johnson has submit-
ted on appeal a copy of a letter to his attorney in which he states
under penalty of perjury that the motion to reconsider was written on
January 15 or 16 and was picked up by the night officer "at midnight
or later." Given that the envelope received by the district court was
post-marked January 16, it is possible that Johnson filed the motion
by delivering it to prison officials before his attorney filed the notice
of appeal on January 16. If the motion to reconsider was filed before
the notice of appeal, the district court had jurisdiction to rule on the
motion. Christy, 3 F.3d at 767. This factual question must be decided
by the district court. Accordingly, we remand for the district court to
determine whether Johnson’s motion to reconsider was filed under
Houston v. Lack before the notice of appeal was filed. The parties are
directed to notify this Court immediately once the district court has
made its factual finding. We will then consider the issues Johnson has
raised in this appeal. 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.

                                                           REMANDED
