UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6975

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALFRED E. SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (CR-96-54)

Submitted: September 30, 2003 Decided: October 8, 2003

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Alfred E. Smith, Appellant Pro Se. Thomas Richard Ascik, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Alfred Smith seeks to appeal the district court’s order

denying his petition for a writ of error coram nobis filed under

(2000). We have reviewed the record and the district

court’s order and find no reversible error. Although the district

court resolved Smith’s claims on the merits, a writ of error coram

nobis is available only when the petitioner is not in custody.

See, e.g., United States v. Sawyer,

(1st Cir.

2001). As Smith is in federal custody by virtue of his supervised

release status, see United States v. Pregent,

(4th Cir. 1999), he is not entitled to relief under § 1651. United

States v. Noske,

(8th Cir. 2000). Accordingly,

we affirm the district court’s order denying relief on that basis.

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.

AFFIRMED

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