USCA4 Appeal: 23-7092 Doc: 8 Filed: 10/01/2024 Pg: 1 of 3

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-7092

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SYLVESTER R. BOOKER, a/k/a Sylvester Reginald Booker, a/k/a Ves, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., Senior District Judge. (3:16-cr-00023-JAG-1)

Submitted: September 20, 2024 Decided: October 1, 2024

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

Sylvester R. Booker, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Sylvester R. Booker appeals the district court’s orders construing his Fed. R. Civ. P. 60(b)(6) motion for relief from judgment and his motion to expand claims as unauthorized, successive 28 U.S.C. § 2255 motions and dismissing them for lack of jurisdiction. * Our review of the record confirms that the district court properly construed Booker’s Rule 60(b) motion and motion to expand claims as successive § 2255 motions over which it lacked jurisdiction because he failed to obtain prefiling authorization from this court. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); McRae, 793 F.3d at 397-400.

Accordingly, we affirm the district court’s orders. However, we modify the orders, United States v. Booker, No. 3:16-cr-00023-JAG-1 (E.D. Va. Aug. 22, 2023; Sept. 27, 2023), to reflect that Booker’s motions were dismissed without prejudice for lack of jurisdiction, and affirm as modified, 28 U.S.C. § 2106.

Consistent with our decision in United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003), we construe Booker’s notice of appeal and informal brief as an application to file a second or successive § 2255 motion. Upon review, we conclude that Booker’s claims do not meet the relevant standard. See 28 U.S.C. § 2255(h). We therefore deny authorization to file a successive § 2255 motion.

* A certificate of appealability is not required to appeal the district court’s jurisdictional categorization of a Rule 60(b) motion as an unauthorized, successive § 2255 motion. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).

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We deny Booker’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED