           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 14-30934                                FILED
                                                                          February 27, 2017

SEALED APPELLEE,                                                             Lyle W. Cayce
                                                                                  Clerk
                                                 Plaintiff-Appellee

v.

SEALED APPELLANT,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-2111


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       The movant seeks a certificate of appealability (COA) to appeal the
denial of his motion for resentencing for the offense of conspiracy to distribute
and possess with intent to distribute cocaine. His conviction was entered on
March 7, 2012, and the movant did not appeal. Approximately two years later,
his retained counsel moved the district court for resentencing.                       Without
asserting a basis for the court’s jurisdiction, the motion alleged that a
guidelines enhancement imposed at sentencing violated the Ex Post Facto


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30934

Clause. The district court denied relief on the merits. Acting pro se, the
movant timely appealed. He did not move for a COA.
      Although the case initially was docketed as an appeal of the criminal
conviction, it was re-designated as an appeal from the denial of what was, in
effect, a 28 U.S.C. § 2255 motion. See Tolliver v. Dobre, 211 F. 3d 876, 877 (5th
Cir. 2000) (“Section 2255 is the primary means of collaterally attacking a
federal sentence.”); see also, e.g., United States v. Fisher, 372 F. App’x 526, 528
(5th Cir. 2010) (noting that where a federal prisoner’s motion “primarily seeks
to challenge collaterally the constitutionality of his conviction, it should be
construed, and considered, by the district court as a motion under 28 U.S.C.
§ 2255”). The movant then filed a motion in this court for a COA, which is
required to appeal the denial of relief under § 2255.             See 28 U.S.C.
§ 2253(c)(1)(B).
      Rule 11(a) of the Rules Governing § 2255 Proceedings requires the
district court to “issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” This requirement previously appeared
in Federal Rule of Appellate Procedure 22(b). See FED. R. APP. P. 22(b) (2008);
Cardenas v. Thaler, 651 F.3d 442, 444 & n.1 (5th Cir. 2011). Under Rule 22,
“the absence of a prior determination by the district court on whether a COA
should issue posed a jurisdictional bar to this court’s consideration of whether
to grant or deny a COA.” Cardenas, 651 F.3d at 445 & n.3. We assume,
without deciding, that this jurisdictional requirement continues to apply under
Rule 11.
      The district court’s order denying the motion for resentencing is
VACATED, and the case is REMANDED for further proceedings consistent
with Rule 11(a), as well as the requirements in Castro v. United States, 540
U.S. 375, 383 (2003), for construing a pro se litigant’s motion as a first motion



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                             No. 14-30934

under § 2255. The motion for appointment of counsel is DENIED. See FIFTH
CIRCUIT PLAN FOR REPRESENTATION ON APPEAL UNDER THE CRIMINAL JUSTICE
ACT, § 3B.




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