                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6850



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DARIUS MAURICE BAILEY,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-96-90; CA-04-239-2)


Submitted:   September 8, 2004        Decided:   September 21, 2004


Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Darius Maurice Bailey, Appellant Pro Se. Robert Joseph Seidel,
Jr., Assistant United States Attorney, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Darius Maurice Bailey appeals the district court’s order

recharacterizing his post-conviction motion as a motion under 28

U.S.C. § 2255 (2000) and denying it as untimely.                Bailey’s motion

challenges the district court’s jurisdiction at the time of his

conviction. Because Bailey timely objected to the district court’s

recharacterization, Bailey was entitled to have the district court

“rule on the merits of [his] motion as filed.”                 United States v.

Emmanuel, 288 F.3d 644, 649 (4th Cir. 2002). Although the district

court erred in converting the motion in the face of Bailey’s

objection,    it   is    clear   from   the   record    that    the   motion   as

characterized by Bailey was without merit.             Because we are able to

affirm the judgment of a district court on any basis supported by

the record, we affirm the district court’s denial of Bailey’s

motion.   See Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222

(4th Cir. 2002).        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.



                                                                       AFFIRMED




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