                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-6698


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JEFFREY LYNN MYERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge.   (5:06-cr-00033-RLV-DCK-1; 5:11-cv-
00065-RLV)


Submitted:   October 31, 2014             Decided:   January 14, 2015


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


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Jeffrey Lynn Myers, Appellant Pro Se.        Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jeffrey Lynn Myers filed a 28 U.S.C. § 2255 (2012)

motion   raising       several    claims       of     ineffective      assistance      of

counsel.     The district court denied relief on all but one claim,

namely, that counsel was ineffective for failing to object to

Myers’s sentence as to Count Two because the jury had convicted

him of simple possession, rather than possession with intent to

distribute, as charged in the indictment.                   Because the statutory

maximum applicable to Count Two was three years, the district

court    entered    an       amended   judgment,        without       holding   another

sentencing     hearing,        imposing    a    three-year        sentence      on    that

count.     Myers now appeals the denial of relief on some of his

unsuccessful habeas claims and the amended judgment.                       We dismiss

this appeal in part, and we affirm the court’s amended criminal

judgment.

            An amended judgment entered as a result of a § 2255

resentencing     “is     a    hybrid   order        that   is   both     part    of   the

petitioner’s § 2255 proceeding and part of his criminal case.”

United States v. Hadden, 475 F.3d 652, 664 (4th Cir. 2007).                            To

the extent the movant seeks to appeal the order by challenging

the district court’s decision not to grant relief on some of the

claims in his § 2255 motion, he is appealing the final order in

a   proceeding     under      § 2255   and     must    obtain     a    certificate     of

appealability (COA) under § 2253.                    To the extent he seeks to

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appeal    the    order    by   challenging       the   propriety      of   the    relief

granted, i.e., whether the relief was appropriate under § 2255

or whether the new sentence is in conformity with the Sentencing

Guidelines, he is appealing a new criminal sentence and need not

obtain a COA.       Id. at 664-66.

            With respect to Myers’s appeal of the district court’s

order denying relief on all but one claim in his § 2255 motion,

the order is not appealable unless a circuit justice or judge

issues      a      certificate        of       appealability.              28     U.S.C.

§ 2253(c)(1)(B) (2012).            A certificate of appealability will not

issue     absent     “a    substantial      showing      of     the   denial      of   a

constitutional right.”          28 U.S.C. § 2253(c)(2) (2012).                  When the

district court denies relief on the merits, a prisoner satisfies

this    standard     by    demonstrating       that    reasonable     jurists      would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.              Slack v. McDaniel, 529 U.S. 473,

484    (2000);     see    Miller-El   v.   Cockrell,      537    U.S.      322,   336-38

(2003).     When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the motion states a

debatable claim of the denial of a constitutional right.                          Slack,

529 U.S. at 484-85.            We have independently reviewed the record

and    conclude    that    Myers    has    not   made    the    requisite       showing.



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Accordingly, we deny a certificate of appealability and dismiss

this portion of the appeal.

            Myers    also     seeks        to    appeal       the   amended      criminal

judgment,     claiming      the     district       court      should     have     held    a

resentencing      hearing     to    afford       him    the   benefit      of   the     Fair

Sentencing    Act    of    2010     and    the    Supreme      Court’s     decision       in

Alleyne v. United States, 133 S. Ct. 2151 (2013).                           We disagree

with Myers’s arguments.

            We have held that the Fair Sentencing Act does not

apply retroactively to sentences imposed before its enactment in

2010.     United States v. Bullard, 645 F.3d 237, 248 (4th Cir.

2011).     Myers was sentenced in 2008, and because the amended

criminal judgment issued by the district court following his §

2255    motion    corrected        his    original      sentence       without    a    full

resentencing, the Fair Sentencing Act is not implicated.                                 See

United    States    v.     Black,    737    F.3d       280,   286   (4th    Cir.       2013)

(explaining that application of the FSA to sentences imposed

after its effective date "refer[s] to initial sentencings . . .

not to subsequent proceedings to modify [a] sentence").

            Myers’s claim under Alleyne also fails.                      In that case,

the     Supreme    Court    held     that       any    fact     that    increases        the

mandatory minimum for a crime must be submitted to the jury and

found beyond a reasonable doubt.                 131 S. Ct. at 2155.            Here, the

indictment    charged       Myers    with       conspiracy     involving        more    than

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fifty grams of crack cocaine.                   The jury, however, found Myers

responsible for only five grams of crack cocaine.                                 This finding

was   sufficient,    at     the    time,     to    require           a    mandatory      minimum

sentence and therefore Myers’s original sentence did not violate

Alleyne.       Moreover, the district court’s ultimate sentence of

360   months     relied    on     Myers’s       status     as        a     de    facto    career

offender,      and   did     not      result      from         any        mandatory      minimum

sentence.

            Accordingly,         we   affirm       as     to    the        district      court’s

amended    judgment.        We     further      deny      Myers’s          motions       for   the

appointment of counsel and for a stay of transfer to another

facility.      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 IN PART;
                                                                            AFFIRMED IN PART




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