                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 00-7334



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


HERIBERTO MOLINA-OSUNA,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Middle Dis-
trict of North Carolina, at Salisbury. William L. Osteen, District
Judge. (CR-96-255-4-2, CA-00-275-1)


Submitted:   May 3, 2001                    Decided:   May 29, 2001


Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Heriberto Molina-Osuna, Appellant Pro Se. Clifton Thomas Barrett,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Heriberto Molina-Osuna seeks to appeal the district court’s

order dismissing his motion filed under 28 U.S.C.A. § 2255 (West

Supp. 2000).   Molina-Osuna’s case was referred to a magistrate

judge pursuant to 28 U.S.C. § 636(b)(1)(B) (1994).   The magistrate

judge recommended that relief be denied and advised Molina-Osuna

that failure to timely file and serve objections to this recom-

mendation could waive appellate review of a district court order

based upon the recommendation.   Despite this warning, Molina-Osuna

failed to properly serve on the Defendant his objections to the

magistrate judge’s recommendation.

     The timely filing and service of objections to a magistrate

judge’s recommendation is necessary to preserve appellate review of

the substance of that recommendation when the parties have been

warned that failure to do so will waive appellate review.      See

Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also

Thomas v. Arn, 474 U.S. 140 (1985). Molina-Osuna has waived appel-

late review by failing to properly file and serve objections after

receiving proper notice.    We accordingly deny a certificate of

appealability and dismiss the appeal.*      We dispense with oral


     *
      On appeal, Molina-Osuna raises a claim under Apprendi v. New
Jersey, 530 U.S. 466 (2000). We recently held in United States v.
Sanders,     F.3d   , 2001 WL 369719 (4th Cir. Apr. 13, 2001) (No.
00-6281), that the new rule announced in Apprendi is not retro-
actively applicable to cases on collateral review. Accordingly,
Molina-Osuna’s Apprendi claim is not cognizable.


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argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.




                                                        DISMISSED




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