                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-7259



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JERRY SINGLETARY,

                                             Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (CR-90-86; CA-92-1067-12-4)


Submitted:   January 30, 2004               Decided:   July 26, 2004


Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Jerry Singletary, Appellant Pro Se.     Mark C. Moore, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          In    2001,     Jerry    Singletary       filed   a   request    for   a

certificate of appealability (“COA”) from the district court’s 1996

denial of his motion under 28 U.S.C. § 2255 (2000).                       Because

Singletary’s appeal is almost five years late, his appeal must be

dismissed as untimely, and his request for a COA is denied as moot.

See F. R. App. P. 4(a)(1)(B).

          Despite the label Singletary attached to his motion, it

appears, in reality, to request authorization to file a second or

successive motion under § 2255.             Consequently, we construe his

motion as a request for such authorization.                See United States v.

Winestock, 340 F.3d 200, 208 (4th Cir. 2003).               In order to obtain

authorization to file a successive § 2255 motion, a movant must

assert claims based on either:          (1) a new rule of constitutional

law, previously unavailable, made retroactive by the Supreme Court

to cases on collateral review; or (2) newly discovered evidence

sufficient to establish that no reasonable factfinder would have

found   the    movant    guilty.      28    U.S.C.     §    2244(b)(2)    (2000).

Singletary     does     not   satisfy      either     of    these   conditions.

Singletary’s sole argument is that the Supreme Court’s decision in

Apprendi v. New Jersey, 503 U.S. 466 (2000), announced a new rule

of law that should be made retroactive on collateral review.

Singletary’s argument is foreclosed by this court’s decision in

United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001).


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Therefore, we decline to authorize Singletary to file a successive

§ 2255 motion.

           Accordingly, we deny the certificate of appealability as

moot and dismiss the appeal. We also deny Singletary authorization

to file a second or successive § 2255 motion.           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.



                                                               DISMISSED




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