                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-6903


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH B. KUBINSKI,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Fayetteville. Malcolm J. Howard,
Senior District Judge. (3:93-cr-00028-H-1)


Submitted:   November 27, 2013            Decided:   December 13, 2013


Before KING, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


D. Craig Hughes, LAW OFFICES OF D. CRAIG HUGHES, Houston, Texas,
for Appellant.     Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Shailika K. Shah, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Kenneth      B.    Kubinski          appeals ∗      the       district     court’s

orders denying him relief under Fed. R. Crim. P. 35 (1990) (“old

Rule 35”) and denying his postjudgment motion under Fed. R. Civ.

P. 59(e).          Our review of the record convinces us that Kubinski

was properly sentenced under the federal Sentencing Guidelines,

and   that        he   is     not    entitled       to     relief          under    old    Rule    35.

Therefore,         the    district         court    did    not     err       in    denying   relief

under       old    Rule       35    or    in     declining       to    alter        or    amend    the

judgment.

                  In any event, the claims Kubinski asserts are more

properly raised under 28 U.S.C.A. § 2255 (West Supp. 2013), but

because he has already challenged the convictions in question

under       § 2255,      he    cannot       file    a    second        or    successive      motion

without       authorization              from    this    Court.            In     accordance      with

Circuit authority, we have construed Kubinski’s notice of appeal

and   informal           brief      as    an     application          to    file     a    second    or

successive § 2255 motion.                       See United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003).                      In order to obtain authorization


        ∗
       We reject the Government’s claim that Kubinski’s notice of
appeal is untimely. See MLC Auto., LLC v. Town of S. Pines, 532
F.3d 269, 279 (4th Cir. 2008) (“[D]esignation of a postjudgment
motion in the notice of appeal is adequate to support a review
of the final judgment when the intent to do so is clear.”
(internal quotation marks omitted)).



                                                   2
to   file   a   successive     §    2255   motion,     a   prisoner   must   assert

claims based on either:

      (1) newly discovered evidence that . . . would be
      sufficient to establish by clear and convincing
      evidence that no reasonable factfinder would have
      found the movant guilty of the offense; or

      (2) a new rule of constitutional law, made retroactive
      to cases on collateral review by the Supreme Court,
      that was previously unavailable.

28 U.S.C.A. § 2255(h).             Kubinski’s claims do not satisfy either

of these criteria.        Therefore, we deny authorization to file a

successive § 2255 motion.

            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.

                                                                           AFFIRMED




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