DLD-135                                                        NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 11-1107
                                       ___________

                             UNITED STATES OF AMERICA

                                             v.

                                TERRANCE MANUEL,
                                                  Appellant
                        ____________________________________

                       On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                 (D.C. Crim. No. 07-cr-00177)
                       District Judge: Honorable Eduardo C. Robreno
                        ____________________________________

                 Submitted for Possible Summary Action Pursuant to
                        Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 10, 2011
                Before: BARRY, FISHER AND ROTH, Circuit Judges

                               (Opinion filed: May 3, 2011 )
                                        _________

                                         OPINION
                                         _________

PER CURIAM

      Terrance Manuel appeals pro se from the order of the District Court denying what

it apparently construed as a motion for sentencing relief. We will vacate and remand for

further proceedings.
                                             1
                                             I.

       In 2008, Manuel was convicted of four federal crimes, including possession with

intent to distribute five grams or more of cocaine base (“crack cocaine”) in violation of

21 U.S.C. §§ 841(a)(1) & (b)(1)(B). The District Court sentenced him below the

Sentencing Guidelines range to a term of 271 months in prison. We affirmed his

conviction, see United States v. Manuel, 342 F. App’x 844, 848 (3d Cir. 2009), and the

United States Supreme Court denied certiorari, see Manuel v. United States, 131 S. Ct.

258 (2010).

       Manuel mailed the motion at issue here to the District Court shortly before the

denial of certiorari, and it arrived after that ruling. Manuel captioned the motion as a

“Motion to Supplement Brief or Leave to Supplement Proceeding Regarding the Newly

Enacted 18:1 Ration [sic].” Manuel asserted that he was still on certiorari review and

asked the District Court to “take into consideration” two claims. First, he asserted that he

is eligible for relief under the Fair Sentencing Act of 2010, which increased the amount

of crack cocaine that triggers a mandatory minimum sentence under 21 U.S.C. §

841(b)(1)(B). See United States v. Reevey, 631 F.3d 110, 114 (3d Cir. 2010). Second,

he asserted that he is eligible for relief under the related Amendment 748 to U.S.S.G. §

2D1.1(c), which decreased the base offense level applicable to offenses involving crack

cocaine. See U.S. Sentencing Guidelines Manual, Supp. to 2010 Guidelines Manual,

Amend. 748 (2010). The District Court directed the Government to respond to the

motion, which it did on the merits. Manuel then sent the District Court a letter, in which
                                             2
he requested counsel and clarified that “I have not asked for any type of reduction or

anything just to supplement my brief so far.” By order entered January 4, 2011, the

District Court concluded that Manuel’s claims lack merit and denied his motion with

prejudice. Manuel appeals. We have jurisdiction over the District Court’s final order

pursuant to 28 U.S.C. § 1291.1

                                            II.

       Manuel never affirmatively sought relief on the merits of his claims. Instead, the

only relief he requested was leave to supplement his “brief” on direct appeal

(presumably, his certiorari petition). The District Court nevertheless denied his claims

with prejudice. The District Court did not specify the procedural mechanism under

which it construed Manuel as proceeding or the basis for its jurisdiction to reach the

merits of his claims.

       If Manuel had mentioned only Amendment 748 to the Sentencing Guidelines, then

we might be inclined to construe his motion in the first instance as one for a sentence

reduction under 18 U.S.C. § 3582(c)(2). Manuel’s reference to the Fair Sentencing Act,

however, renders this approach problematic. A claim seeking retroactive application of

the Fair Sentencing Act may not be cognizable on a motion for a sentence reduction. See

18 U.S.C. § 3582(c)(2) (authorizing certain reductions “based on a sentencing range that

has subsequently been lowered by the Sentencing Commission”). Although we do not


   1
    The District Court’s order also denied Manuel’s request for counsel. Manuel has not
   argued that the District Court abused its discretion in that regard and, in light of our
                                             3
decide the issue, such a claim may be cognizable, if at all, only by means of a habeas

petition under 28 U.S.C. § 2241 or a motion attacking the sentence under 28 U.S.C. §

2255.

        Treating Manuel’s motion as either type of filing would have various

consequences. Treating it as a § 2241 petition could subject any future § 2241 petition he

might file to dismissal as an abuse of the writ. See Zayas v. INS, 311 F.3d 247, 256-57

(3d Cir. 2002). And treating it as a § 2255 motion would subject any future § 2255

motion he might wish to file to the provisions restricting the filing of a “second or

successive” motion. 28 U.S.C. § 2255(h). For that reason, district courts must provide

notice to pro se litigants before characterizing their filings as § 2255 motions and

reaching the merits. See Castro v. United States, 540 U.S. 375, 383 (2003); United States

v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). The District Court did not issue any such

notice in this case. Treating Manuel’s motion as one under § 2255 also would implicate

our jurisdiction, because Manuel could not then appeal unless the District Court or we

issued a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B).2

        Accordingly, we will vacate the District Court’s order denying Manuel’s claims on

the merits and remand for further proceedings. In that regard, we note that the only relief

Manuel ever requested was to supplement his “brief” on direct appeal. Because his direct



   disposition, we need not address the issue.
   2
     Manuel evidently intends to file an actual § 2255 motion. In his letter to the District
   Court, he asked “is my 2255 time running” and requested transcripts of his trial and
   sentencing, which the District Court has provided.
                                              4
appeal had concluded by the time his motion reached the District Court, the District

Court may wish to simply treat the motion on its own terms and dismiss it as moot. The

District Court may also wish to ascertain whether Manuel affirmatively seeks relief and

determine in the first instance the proper procedural mechanism for doing so. We

appreciate the District Court’s willingness to liberally construe Manuel’s pro se filing,

and we have no reason to question its resolution of the merits.3 For the reasons explained

above, however, we will remand for further proceedings. Manuel’s motion for the

appointment of counsel on appeal is denied.




   3
     The District Court determined that Manuel is not eligible for relief under
   Amendment 748 on the sole ground that the Sentencing Commission has not made it
   retroactive. For informational purposes, we note that such a conclusion ordinarily
   should result in a dismissal without prejudice rather than a dismissal with prejudice.
   See United States v. Williams, 630 F.3d 44, 53 (1st Cir. 2010); United States v. Wise,
   515 F.3d 207, 221 (3d Cir. 2008).
                                              5
