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

                                                FILED
                                                                September 22, 2009
                               No. 08-51170
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

NORBERTO BARRERA, also known as Beto, also known as Norberto Barrera
Villareal,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 1:96-CR-22-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
      Norberto Barrera, federal prisoner # 04378-079, pleaded guilty to
conspiracy to distribute marijuana and attempting to distribute marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and he was sentenced to 360 months
of imprisonment. Barrera appeals the district court’s denial of his motion for
relief from judgment under F ED. R. C IV. P. 60(b)(1), and his motion to amend




      *
      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should not be published and is not precedent except under the limited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. 08-51170

judgment under F ED. R. C IV. P. 59(e), which were filed almost one year after the
dismissal of his 28 U.S.C. § 2255 motion to vacate his sentence.
      We previously held that Barrera’s appeal of the dismissal of his § 2255
motion was untimely and dismissed the appeal for lack of jurisdiction.         In
appealing the denial of his post-judgment motions, Barrera argues that he was
prevented from timely appealing the dismissal of his § 2255 motion by
extraordinary circumstances, and he essentially seeks to reinstate appellate
jurisdiction over the original denial of his § 2255 motion.
      We review the district court’s denial of a Rule 60(b) motion for abuse of
discretion. Dunn v. Cockrell, 302 F.3d 491, 493 (5th Cir. 2002). Under this
standard, “[i]t is not enough that the granting of relief might have been
permissible, or even warranted--denial must have been so unwarranted as to
constitute an abuse of discretion.” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396,
402 (5th Cir. 1981).
      A timely notice of appeal in a civil case is “mandatory and jurisdictional.”
Bowles v. Russell, 551 U.S. 205, 213 (2007). A Rule 60(b) motion is not a
substitute for a timely appeal and cannot be used simply to vacate a judgment
and then re-enter it to allow a timely appeal. Dunn, 302 F.3d at 493 (“As the
sole purpose of [the] 60(b) motion is to achieve an extension of the time in which
to file a notice of appeal, it must fail.”). Moreover, although Barrera seeks to
avail himself of some equitable exception so that his untimely appeal may be
considered, there are no “equitable exceptions to jurisdictional requirement[]”
of filing a timely notice of appeal. Bowles, 551 U.S. at 213.
      Because Barrera’s Rule 59(e) motion was filed in excess of 10 days after
the November 2, 2007 entry of judgment dismissing his § 2255 motion and raised
the same grounds for relief as his Rule 60(b) motion, we construe his Rule 59(e)
motion as a second, or successive, Rule 60(b) motion. See Benson v. St. Joseph
Regional Health Care, ___F.3d___, No. 07-20726, 2009 WL 1985508 at * 3 (5th


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                                 No. 08-51170

Cir. July 10, 2009); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665,
667 (5th Cir. 1986) (en banc). Accordingly, we will not review it. Willis v. City
of Ft. Worth, 41 F.3d 661, No. 94-10377, 1994 WL 684564 at *1 (citing Charles
L.M. v. Northeast Indep. Sch. Dist., 884 F.2d 869, 870 (5th Cir. 1989)).
      The district court’s judgment is AFFIRMED.




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