IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50241 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AUDELIO ARZOLA-AMAYA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC Nos. EP-87-CR-162-ALL-H EP-95-CV-473-H - - - - - - - - - - January 3, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Audelio Arzola-Amaya, federal prisoner # 38898-080, appeals

from the denial of his FED. R. CIV. P. 60(b) and 59(e) motions

following the denial of his motion to vacate, set aside, or

correct his sentence pursuant to

. Arzola-

Amaya’s request to file a reply brief out of time is granted.

Arzola-Amaya’s notice of appeal is construed as a request for a

certificate of appealability (COA) pursuant to FED. R. APP.

P. 22(b). See Slack v. McDaniel,

(2000).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-50241 -2-

Before a movant may request a COA from this court, the district

court must first determine whether a COA should issue. Muniz v.

Johnson,

(5th Cir. 1997). No such ruling has

been made by the district court in this case. Accordingly, the

case is REMANDED to the district court for it to determine

whether a COA should issue.