                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-6535


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY TYRONE HORTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    James C. Fox, Senior
District Judge. (5:08-cr-00060-F-1; 5:13-cv-00100-F)


Submitted:   October 28, 2016               Decided:   November 4, 2016


Before AGEE and    THACKER,     Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Timothy Tyrone Horton, Appellant Pro Se.     Jennifer P. May-
Parker, Assistant United States Attorney, Seth Morgan Wood,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Timothy Tyrone Horton seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

denying relief on his 28 U.S.C. § 2255 (2012) motion.                                The order

is not appealable unless a circuit justice or judge issues a

certificate of appealability.                28 U.S.C. § 2253(c)(1)(B) (2012).

A     certificate      of      appealability        will     not     issue          absent     “a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2012).                    When the district court denies

relief    on    the    merits,    a    prisoner         satisfies    this       standard       by

demonstrating         that     reasonable         jurists    would        find       that     the

district       court’s      assessment    of       the    constitutional            claims     is

debatable       or    wrong.      Slack      v.    McDaniel,       529    U.S.       473,     484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on procedural grounds, the

prisoner must demonstrate both that the dispositive procedural

ruling    is    debatable,       and   that       the    motion    states       a    debatable

claim of the denial of a constitutional right.                            Slack, 529 U.S.

at 484-85.

       On appeal, Horton contends that his Armed Career Criminal

Act    (“ACCA”)       enhancement      was    improperly          based    on       his     North

Carolina       convictions      for    common      law    robbery.         Following          the

district court’s order denying relief on this issue, we decided

United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016),

                                              2
holding     that         North     Carolina         common    law      robbery        is    not

categorically        a    crime     of       violence   for    ACCA     purposes.           Our

opinion   in    Gardner          was    not    extant     when   the     district          court

previously ruled on the issue.

     After     Horton       filed      this     appeal,      however,     he   sought        and

received resentencing in the district court without the ACCA

enhancement.              Horton       was     resentenced       to     120     months       of

imprisonment as noted in his amended criminal judgment filed on

September      30,        2016.          Thus,       Horton’s         appeal     is        moot.

Accordingly, we deny a certificate of appealability and dismiss

the appeal as moot.              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.

                                                                                    DISMISSED




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