                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      November 8, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

                 Plaintiff - Appellee,                    No. 06-2137
          v.                                            (D. New M exico)
 ULYSSES HARPER, JR.,                        (D.C. Nos. CIV-06-0007 JC/W PL and
                                                        CR-96-220 JC)
                 Defendant - Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.


      Ulysses S. Harper was convicted in the United States District Court for the

District of New M exico on a charge of conspiracy to possess methamphetamine

with intent to distribute. W e affirmed his conviction on November 16, 1998. See

United States v. Harper, No. 97-2153, 1998 W L 794972. On January 3, 2006, he

filed a motion in the district court entitled “Petitioner’s M otion to Correct


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Sentence Pursuant to Federal Rule of Civil Procedure 60(b)(1)(6) M istake, Fraud,

Inadvertence, Excusable Neglect. Gonzales v. Crosby, ___ U.S. ___, No. 04-

6432, June 23, 2005.” The motion challenges his sentence as contrary to United

States v. Booker, 543 U.S. 220 (2005).

      The district court correctly decided that the motion is not a proper

Rule 60(b) motion but rather a motion under 28 U.S.C. § 2255. See United States

v. Nelson, No. 06-6071, 2006 W L 2848113 (10th Cir. Oct. 6, 2006). The court

also correctly noted that

      “district courts should not recharacterize a motion purportedly made
      under some other rule as a motion made under § 2255 unless (a) the
      movant, with knowledge of the potential adverse consequences of
      such recharacterization, agrees to have the motion so recharacterized,
      or (b) the court finds that, notwithstanding its designation, the
      motion should be considered as made under § 2255 because of the
      nature of the relief sought, and offers the movant the opportunity to
      withdraw the motion rather than have it so recharacterized.”

R. Doc. 2 at 2 (M em. Op. & Order, Feb. 7, 2006) (quoting United States v. Kelly,

235 F.3d 1238, 1242 (10th Cir. 2000)) (further internal quotation marks omitted).

      The district court then observed, however, that recharacterization would not

prejudice M r. H arper because his motion was untimely. See United States v.

M artin, 357 F.3d 1198, 1200 (10th Cir. 2004). It therefore recharacterized his

motion as one under § 2255 and dismissed the motion with prejudice as untimely.

      M r. Harper can appeal the district court’s ruling only if we grant a

certificate of appealability (COA). See 28 U.S.C. § 2253(c). He is entitled to a



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COA only if reasonable jurists could debate the district court’s ruling. See Slack

v. M cDaniel, 529 U.S. 473, 484 (2000).

      No reasonable jurist could debate the district court’s ruling. W e therefore

D EN Y Mr. H arper’s request for a COA and DISM ISS the appeal. W e also DENY

his motion to proceed in form a pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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