                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-6059



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


LINWOOD GERALD KENNY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:01-cr-00185-FDW-1)


Submitted:   August 21, 2008                 Decided:   August 26, 2008


Before WILLIAMS, Chief Judge, and KING and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Linwood Gerald Kenny, Appellant Pro Se. Karen S. Marston, OFFICE OF
THE UNITED STATES ATTORNEY, Gretchen C.F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Linwood Gerald Kenny appeals the district court’s order

construing his motion for an evidentiary hearing as a criminal

motion contesting the Government’s failure to file a Fed. R. Crim.

P. 35 motion.   We have reviewed the record and find no reversible

error.   Accordingly, we affirm for the reasons stated by the

district court.      United States v. Kenny, No. 3:01-cr-00185-FDW-1

(W.D.N.C. Nov. 26, 2007).      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




                                     2
