United States v. Calleja , 2 F. App'x 337 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-7618
CARLOS RAFAEL CALLEJA,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-86-28, CA-00-639-7)
Submitted: January 11, 2001
Decided: January 24, 2001
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Carlos Rafael Calleja, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CALLEJA
OPINION
PER CURIAM:
Carlos R. Calleja seeks to appeal the district court’s order denying
his motion filed under former Rule 35(a) of the Federal Rules of
Criminal Procedure, which the district court construed as a motion
under 28 U.S.C.A. § 2255 (West Supp. 2000), and the order denying
his motion for reconsideration. We dismiss the appeal from the denial
of the § 2255 motion because the appeal was untimely filed. The dis-
trict court entered its order denying § 2255 relief on August 11, 2000.
Calleja’s notice of appeal was filed on November 9, 2000. Because
Calleja did not file his notice of appeal within the sixty-day appeal
period provided by Fed. R. App. P. 4(a)(1), and the district court did
not extend or reopen the appeal period under Fed. R. App. P. 4(a)(5),
(6), we dismiss this portion of the appeal for lack of jurisdiction.
With regard to Calleja’s motion for reconsideration, we find that
although the district court considered the motion as one filed under
Fed. R. Civ. P. 59(e), it should have been construed as one filed under
Fed. R. Civ. P. 60(b), because the motion was filed more than ten
days after entry of judgment. Fed. R. Civ. P. 59(e), 60; CNF Con-
structors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 400 (4th Cir.
1995). Where, as here, the motion seeks "reconsideration of legal
issues already addressed in an earlier ruling, the motion ‘is not autho-
rized by Rule 60(b).’" CNF Constructors, Inc., 57 F.3d at 401 & n.2
(quoting United States v. Williams, 674 F.2d 310, 313 (4th Cir.
1982)). The district court therefore did not abuse its discretion in
denying the motion. Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th
Cir. 1997) (stating standard of review).
Accordingly, we deny a certificate of appealability and dismiss the
appeal. 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.
DISMISSED