          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                   June 23, 2009
                                 No. 08-30842
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

GLENN WAYNE KELLY

                                             Defendant-Appellant


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                         USDC No. 5:01-CR-50061-1


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      Glenn Wayne Kelly, federal prisoner # 10984-035, appeals from the district
court’s order denying his motion for clarification or correction of sentence. In his
motion, Kelly challenged the 105-month sentence that he received following his
2001 conviction of possession of a firearm by a convicted felon. Kelly’s district
court motion was an attempt by Kelly to collaterally attack his sentence by
raising errors that occurred at or prior to sentencing. As such, the motion should



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-30842

have been construed by the district court as a 28 U.S.C. § 2255 motion. See
Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005); United States v.
Santora, 711 F.2d 41, 42 and n.1 (5th Cir. 1983). Such a recharacterization of
Kelly’s motion has important consequences of which Kelly should be apprised.
See Castro v. United States, 540 U.S. 375, 383 (2003). Also, because Kelly’s
motion was in the nature of a § 2255 motion, this court lacks jurisdiction over
Kelly’s appeal absent a certificate of appealability ruling in the district court.
See Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997); United States v.
Youngblood, 116 F.3d 1113, 1114-15 (5th Cir. 1997).
      The judgment of the district court is VACATED and this case is
REMANDED for further proceedings.




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