                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-7288



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DWAYNE DELESTON,

                                            Defendant - Appellant.


                            No. 03-6649



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DWAYNE DELESTON,

                                            Defendant - Appellant.


                            No. 04-6617



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,
          versus


DWAYNE DELESTON,

                                            Defendant - Appellant.


Appeals from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-99-751; CA-02-3895-2-18)


Submitted:   October 1, 2004           Decided:   November 24, 2004


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Dwayne Deleston, Appellant Pro Se. Miller Williams Shealy, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               - 2 -
PER CURIAM:

              On January 2, 2002, Dwayne Deleston filed in the district

court a motion for reduction of sentence under 18 U.S.C. § 3582

(2000).        Deleston challenged the legality of his indictment,

stating that it was defective because it failed to set forth the

elements of the offense, relevant drug quantities, and that it was

not signed by the grand jury foreperson.            He also claimed that his

sentence      was   improperly    enhanced     in   violation   of   the     U.S.

Sentencing Guidelines Manual.

              In an order entered on May 13, 2002, the district court

construed Deleston’s filing as a motion under 28 U.S.C. § 2255

(2000) and denied the motion on the merits.                Deleston appealed,

(No.       02-7288),   claiming   that   the    district    court    erred    in

recharacterizing his § 3582 motion as a § 2255 motion, relying on

United States v. Emmanuel, 288 F.3d 644 (4th Cir. 2002).*


       *
      In Emmanuel, which issued on May 7, 2002, this court held
that the district court must give a prisoner notice and an
opportunity to respond before construing a mislabeled or unlabeled
post-conviction motion as an initial § 2255 motion:

       We hold that if a prisoner files a motion that is not
       denominated a § 2255 motion and the court at its option
       prefers to convert it into the movant’s first § 2255
       motion, the court shall first advise the movant that it
       intends to so recharacterize the motion. The court shall
       also notify the movant of the § 2255 restrictions on
       second or successive motions, the one-year period of
       limitations, and the four dates in § 2255 to be used in
       determining the starting date for the limitations period.
       The notice to the movant shall set a reasonable amount of
       time for the prisoner to respond to the court’s proposed
       recharacterization and shall advise the prisoner that

                                     - 3 -
             On November 18, 2002, while this appeal was pending,

Deleston filed in the district court a § 2255 motion--which he

believed was his first.        On April 3, 2003, the district court

dismissed the motion as successive.          Deleston’s appeal from that

order   is   No.   03-6649.       Deleston   also    filed   a    motion    for

reconsideration which was denied; he has appealed from that order

as well (No. 04-6617).     The three cases have been consolidated.

             This court granted a certificate of appealability as to

Deleston’s claim that the district court erred in recharacterizing

his § 3582 motion as a § 2255 motion and then denying his § 2255

motion as successive.      In United States v. Castro, 540 U.S. 375,

124 S. Ct. 786 (2003), the Supreme Court held that a court may not

recharacterize a pro se litigant’s mislabeled motion as § 2255

motion “unless the court informs the litigant of its intent to

recharacterize, warns the litigant that the recharacterization will

subject   subsequent   §   2255    motions   to     the   law’s   ‘second    or

successive’    restrictions,      and   provides    the   litigant   with    an

opportunity to withdraw, or to amend, the filing.”           Castro, 124 S.

Ct. at 789.


     failure to respond within the time set by the court will
     result in the original motion being recharacterized as a
     § 2255 motion . . . . If, however, the movant responds
     within the time set by the court but does not agree to
     have the motion recharacterized, the court shall not
     treat it as a § 2255 motion but shall rule on the merits
     of the motion as filed.

Emmanuel, 288 F.3d at 649.

                                    - 4 -
            Under Emmanuel and Castro, the district court erred when

it   failed     to   warn   Deleston    of   the   consequences   of

recharacterization and provide him with an opportunity to withdraw

the motion. The district court erred again when it later dismissed

Deleston’s first designated § 2255 motion as successive.     See id.

at 793 (holding when a district court fails to provide a pro se

litigant with the proper notice required before recharacterization,

the recharacterized motion “cannot count as a § 2255 motion for

purposes of the ‘second or successive’ provision.”).

            Accordingly, we vacate the district court’s orders in all

three appeals and remand for further proceedings consistent with

Castro.     We grant the government’s motion to file its informal

brief out of time and deny Deleston’s motions for appeal status, to

file a motion under Fed. R. Civ. P. 60(b)(4), and for summary

judgment.     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




                                - 5 -
