UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-6339

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

RUDI BERNARD SMITH, Defendant - Appellant.

Appeal from the United States District Court for the Southern Dis- trict of West Virginia, at Charleston. Charles H. Haden II, Chief District Judge. (CR-88-200, CA-96-887-2)

Submitted: July 2, 1998 Decided: July 16, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and HALL, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Rudi Bernard Smith, Appellant Pro Se. Amy Michelle Lecocq, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Appellant appeals the district court’s order denying his motion pursuant to Fed. R. Civ. P. 59 to reconsider the denial of his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion. We have reviewed the record and the district court’s opinions and find no reversible error. The district court dismissed the case after Ap- pellant failed to file objections to the magistrate judge’s report and recommendation. We note that Appellant’s Rule 59 motion could not be construed as objections to the magistrate judge’s report because they were not filed within the time period set for filing such objections. Accordingly, we deny a certificate of appealabil- ity and dismiss on the reasoning of the district court. United States v. Smith, Nos. CR-88-200; CA-96-887-2 (S.D.W. Va., Feb. 4 & 27, 1997). 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