                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7463


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

AHMAD RASHAD TOMLINSON, a/k/a Tank,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:05-cr-00285-BO-1; 5:11-cv-00565-BO)


Submitted:   January 22, 2013             Decided: January 24, 2013


Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Ahmad Rashad Tomlinson, Appellant Pro Se.         Jennifer P. May-
Parker, Ethan A. Ontjes, Assistant United        States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Ahmad Rashad Tomlinson seeks to appeal the district

court’s orders denying relief on his 28 U.S.C.A. § 2255 (West

Supp. 2012) motion and denying his Fed. R. Civ. P. 59(e) motion

to alter or amend the judgment.                     Tomlinson was convicted of

conspiracy      to    distribute       and     to     possess     with       intent    to

distribute crack cocaine and was sentenced as a career offender

in May 2006 to 180 months’ imprisonment.                        He did not file a

direct appeal.

           In        2011,     Tomlinson       filed      this        § 2255     motion

challenging     his    career    offender      designation       in    light     of   the

Supreme Court’s opinion in Carachuri-Rosendo v. Holder, 130 S.

Ct. 2577 (2010), and our opinion in United States v. Simmons,

649 F.3d 237 (4th Cir. 2011) (en banc).                  The district court held

that Carachuri-Rosendo was retroactively applicable to cases on

collateral review and that Tomlinson was entitled to equitable

tolling to assert his claim under Simmons, but that ultimately

Tomlinson’s     claim    failed    on    the        merits.      At    the     time   the

district court issued its decision denying § 2255 relief, it did

not have the benefit of our recent opinion in United States v.

Powell,   691    F.3d    554    (4th    Cir.    2012),        where    we    held     that

Carachuri-Rosendo is not retroactively applicable to cases on

collateral review.       691 F.3d at 559-60.



                                           2
            In   light   of   Powell,       Tomlinson’s    § 2255   motion     is

untimely.    Accordingly, we deny a certificate of appealability

and dismiss the appeal.        We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before   this     court   and    argument     would   not    aid   the

decisional process.



                                                                        DISMISSED




                                        3
