United States v. Brewer ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6213
MARVIN BREWER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Richard L. Voorhees, District Judge.
(CR-90-231-A, CA-95-178-1-V)
Submitted: June 30, 2000
Decided: August 9, 2000
Before WILKINS and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
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COUNSEL
Marvin Brewer, Appellant Pro Se. Brian Lee Whisler, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marvin Brewer filed a 28 U.S.C.A. § 2255 (West Supp. 2000)
motion in the district court challenging his conviction and sentence
for drug violations. The motion was granted to the extent that Brewer
sought an order revising his federal sentence so it would run concur-
rently with his state sentence. Brewer then filed a motion for recon-
sideration challenging the revised sentence. The motion was denied
as moot. Brewer filed a motion in district court for a certificate of
appealability. The court determined it did not have authority to grant
Brewer's motion because 28 U.S.C.A. § 2253(c)(1) (West Supp.
2000) gave authority to grant certificates of appealability only to cir-
cuit justices or judges, not to district judges. The court denied Brew-
er's motion for that reason but further construed the motion as a
timely notice of appeal.
A certificate of appealability may issue only when the applicant has
demonstrated a substantial showing of the denial of a constitutional
right. See 28 U.S.C.A. § 2253(c)(2) (West Supp. 2000); Slack v.
McDaniel, ___ U.S. ___, ___, 68 U.S.L.W. 4315, 4317-18 (U.S. Apr.
26, 2000) (No. 98-6322). Although we conclude the district court had
authority to issue a certificate of appealability, see Fed. R. App. P.
22(b)(1); United States v. Eyer, 113 F.3d 470, 472-74 (3d Cir. 1997);
Burris v. United States, 1999 WL 1569814, at *2 (W.D.N.C. Nov. 8,
1999), Brewer failed to demonstrate a substantial showing of the
denial of a constitutional right.
Brewer contends the district court erred in revising his sentence. It
appears, however, that Brewer misunderstands the court's order. Both
Brewer and the district court agree that Brewer's projected full term
release date should be September 2006. Furthermore, in the district
court's order denying reconsideration, the court states that updated
prison records reflect September 2006 as the projected full term
release date. Because it appears the district court granted Brewer the
relief he seeks, we deny a certificate of appealability and dismiss the
appeal.
2
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
3