                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                October 2, 2006
                               No. 05-16532                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 96-00589-CR-JAL

JOSE ANGEL PEREZ,


                                                              Plaintiff-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (October 2, 2006)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     On February 12, 1997, appellant plead guilty to four counts of a superceding
indictment: Counts I and IV, bank robbery, 18 U.S.C. § 2113(a) and (d), and

Counts II and V, use of a firearm during and in relation to a crime of violence, 18

U.S.C. § 924(c). On May 8, 1997, the district court sentenced appellant to prison

for a total of 340 months.

      Appellant thereafter filed numerous motions to vacate his sentence under 28

U.S.C. § 2255, as well as motions under 18 U.S.C. § 3582 to modify his sentences.

He filed one such motion pursuant to 18 U.S.C. § 3582(c)(1)(B) and 28 U.S.C.

§§ 2241, 2243, which the district court construed as a § 2255 motion to vacate and

denied as impermissibly successive (“Order 163”). Appellant also filed two

identical motions pursuant to 18 U.S.C. § 3582(c)(2), which the district court

denied in an omnibus order. He then filed the motion now before us under Federal

Rule of Civil Procedure 60(b). Although the motion is unclear as to which of the

district court’s many orders it challenged, the court docketed it as a motion for

relief from the omnibus order denying his § 3582(c)(2) motions. It has become

clear on appeal, however, that appellant intended that his Rule 60(b) motion

challenge only Order 163, which denied his § 3582(c)(1)(B) motion as a

successive, untimely § 2255 motion.

      Thus, although not raised by the parties, we first determine whether

appellant must obtain a certificate of appealability (“COA”) before he can appeal



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the denial of his Rule 60(b) motion for relief from judgment of Order 163 denying

him § 2255 relief. See Pagan v. United States, 353 F.3d 1343, 1344-45 (11th Cir.

2003); see also Jackson v. Crosby, 437 F.3d 1290, 1294 (11th Cir. 2006) (holding

that while every Rule 60(b) motion is not necessarily a successive § 2255 motion,

“[i]t is still the law of this circuit that “a [COA] is required for the appeal of any

denial of a Rule 60(b) motion for relief from a judgment in a [28 U.S.C.] § 2254 or

[28 U.S.C.] § 2255 proceeding.”). A COA is a jurisdictional prerequisite to an

appeal from the final order in a § 2255 proceeding. Although we have authority to

grant a COA, an application for a COA must be considered first by the district

court. Fed. R. App. P. 22(b)(1); Edwards v. United States, 114 F.3d 1083, 1084

(11th Cir. 1997). If the putative appellant does not make an express request for a

COA, the district court should treat his notice of appeal as an application for a

COA. Fed.R.App.P. 22(b)(1); Edwards, 114 F.3d at 1084.

      Although appellant did not file an application for a COA, the district court

should have construed his notice of appeal as an application for a COA and

determined whether a COA should issue. Fed. R. App. P. 22(b)(1); Edwards, 114

F.3d at 1084. Because the district court did not do so, we vacate its order denying

appellant’s Rule 60(b) motion and remand the case for the limited purpose of

allowing the court to decide whether to issue a COA.

      VACATED AND REMANDED.


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