                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6322


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KEYSTON JAMORY WEST, a/k/a D, a/k/a Alonzo Green, a/k/a D-
Man,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge.    (3:00-cr-00006-JPB-JES-2; 3:00-cr-00046-
JPB-JES-2; 3:05-cv-00103-JPB-JES)


Submitted:   January 20, 2011             Decided:   February 18, 2011


Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Keyston Jamory West, Appellant Pro Se.  Thomas Oliver Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Keyston        Jamory    West       seeks    to   appeal    the    district

court’s orders denying his motion for an extension of time to

note his appeal from the district court’s orders denying relief

on his 28 U.S.C.A. § 2255 (West Supp. 2010) motion and denying

his timely Fed. R. Civ. P. 59(e) motion for reconsideration. *

Because   the   district      court      did    not    address    whether     West   had

demonstrated       good    cause    or   excusable       neglect      warranting     the

extension,    we    vacate    the    decision      of    the   district      court   and

remand for further proceedings.

           The district court’s order denying West’s Rule 59(e)

motion was entered on September 11, 2009.                        Because the United

States is a party to the action, West had sixty days from the

denial of the Rule 59(e) motion, or until November 10, 2009, to

note his appeal.          See Fed. R. App. P. 4(a)(1)(B).              Although West

did not note his appeal within this period, he was entitled to


     *
       The district court erroneously treated West’s motion for
reconsideration as a Fed. R. Crim. P. 33 motion for new trial.
We note that Section 2255 and Rule 33 are distinct procedural
vehicles, each with its own rules and time limits. “[A] Rule 33
motion is designed to rectify factual injustice, not to correct
legal error.”   United States v. Evans, 224 F.3d 670, 674 (7th
Cir. 2000). A § 2255 motion, on the other hand, challenges the
conviction or sentence as violative of the Constitution or a
statute.   Id. at 673-74.     We conclude that the motion for
reconsideration qualified as a Fed. R. Civ. P. 59(e) motion for
reconsideration of the district court’s order denying West’s
§ 2255 motion.



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move for an extension of the appeal period “no later than 30

days after” expiration of the sixty-day period.                        See Fed. R.

App.    P.   4(a)(5).       His    motion,      filed    on    December      7,   2009,

qualifies as a timely Rule 4(a)(5) motion for extension of time

to note his appeal.

             An extension of the appeal period under Rule 4(a)(5)

may be granted in the district court’s discretion upon a showing

of     “excusable     neglect     or    good    cause.”        Fed.    R.     App.    P.

4(a)(5)(A)(ii).        Here, the district court denied the motion for

extension of time without deciding whether West had demonstrated

good    cause    or   excusable    neglect.        We    accordingly        vacate   the

decision of the district court and remand so that the court may

determine       whether   West    has   made    the    necessary     showing.        The

record, as supplemented, will then be returned to this court for

further consideration.

             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.

                                                              VACATED AND REMANDED




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