                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-6499


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

LARRY JOHNSON,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:07-cr-00153-RDB-1; 1:15-cv-00536-RDB)


Submitted:   September 17, 2015            Decided:   November 5, 2015


Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Larry Johnson, Appellant Pro Se.     Debra Lynn Dwyer, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Larry     Johnson      appeals       from     the    district    court’s          order

dismissing as a successive 28 U.S.C. § 2255 (2012) motion his

self-styled motion for relief from judgment pursuant to Fed. R.

Civ. P. 60(b).        We vacate the district court’s order and remand

for further proceedings.

      “[A] Rule 60(b) motion in a habeas proceeding that attacks

‘the substance of the federal court’s resolution of a claim on

the   merits’    is    not   a     true     Rule    60(b)    motion,     but    rather      a

successive      habeas       [application]”          and     is    subject         to    the

preauthorization requirement of 28 U.S.C. § 2244(b)(3)(A) (2012)

for successive applications.                United States v. McRae, 793 F.3d

392, 397 (4th Cir. 2015) (quoting Gonzalez v. Crosby, 545 U.S.

524, 531-32 (2005)).              By contrast, a “Rule 60(b) motion that

challenges ‘some defect in the integrity of the federal habeas

proceedings’ . . . is         a     true     Rule    60(b)     motion,    and       is   not

subject   to    the    preauthorization            requirement.”         Id.       (quoting

Gonzalez,      545    U.S.    at    531-32).          Where,      however,     a    motion

“‘presents     claims     subject      to    the    requirements       for     successive

applications as well as claims cognizable under Rule 60(b),’”

such a motion is a mixed Rule 60(b)/§ 2255 motion.                           See id. at

400 (quoting United States v. Winestock, 340 F.3d 200, 207 (4th

Cir. 2003)).



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      In his motion for relief from judgment, Johnson asserted a

perceived      defect    in     his    § 2255      proceeding,      and      he   raised

challenges to his conviction and sentence.                         Accordingly, the

motion was a mixed Rule 60(b)/§ 2255 motion.                        See McRae, 793

F.3d 400; Gonzalez, 545 U.S. at 532 n.4 (holding that a movant

files a true Rule 60(b) motion “when he . . . asserts that a

previous ruling which precluded a merits determination was in

error”); Winestock,           340   F.3d    at    207   (stating    that     “a   motion

directly attacking the prisoner’s conviction or sentence will

usually amount to a successive application”).

      The district court did not afford Johnson the opportunity

to elect between deleting his successive § 2255 claims from his

motion   or    having    his    entire      motion      treated    as    a   successive

§ 2255 motion.          See McRae, 793 F.3d             at 400 (“This Court has

made clear that ‘[w]hen [a] motion presents claims subject to

the requirements for successive applications as well as claims

cognizable under Rule 60(b), the district court should afford

the   applicant    an     opportunity        to    elect   between       deleting   the

improper      claims    or    having       the    entire   motion       treated    as   a

successive application.’” (quoting Winestock, 340 F.3d at 207)).

We therefore vacate the district court’s order and remand for

further proceedings.




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     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.



                                                   VACATED AND REMANDED




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