US v. Cepeda, No. 06-6788 (4th Cir. 2007)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6788 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus FAUSTO CEPEDA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:93-cr-00128-JRS; 3:06-cv-00229-JRS) Submitted: February 15, 2007 Decided: February 21, 2007 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Fausto Cepeda, Appellant Pro Se. Charles Philip Rosenberg, United States Attorney, Alexandria, Virginia, David T. Maguire, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fausto Cepeda seeks to appeal the district court s order treating his motion to preserve review of sentencing error filed under Fed. R. Evid. 201(d) as a successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 68384 (4th Cir. 2001). conclude that We have independently reviewed the record and Cepeda has not made the requisite showing. 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 - 2 -