IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50818 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KELLY SPENCER MACON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC Nos. W-00-CV-36 W-97-CR-18-2 -------------------- December 27, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Kelly Spencer Macon, federal prisoner # 07729-052, appeals

the district court’s denial of his motion for permission to file

an out-of-time reconsideration motion and notice of appeal from

the denial of his

motion, wherein he sought to

vacate his convictions for conspiracy to possess with intent to

distribute and possession with intent to distribute crack cocaine.

Macon also filed a request for a certificate of appealability

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50818 -2-

(COA) on the merits of the denial of his

motion.

On appeal, Macon argues that the district court erred in

determining that his motion to file an out-of-time appeal was not

filed within the time prescribed by FED. R. APP. P. 4(a)(6)(A).

In the district court, Macon stated that he first learned of

the entry of the judgment denying his

motion

“[o]n or about June 19, 2001.” Macon’s affidavit setting forth

the exact date on which he received notice of the entry of

judgment, which was submitted in conjunction with his appellate

filings and was not presented to the district court, is not

properly before this court and will not be considered. See

Scarborough v. Kellum,

, 933 n.4 (5th Cir. 1976).

Macon’s motion to file an out-of-time appeal was filed on July 2,

2001, 13 days after he received notice of the entry of the

judgment denying his

motion, thereby making it

untimely. See FED. R. APP. P. 4(a)(6)(A). Accordingly, the

district court did not abuse its discretion in denying Macon’s

motion. All outstanding motions are denied.

Because Macon has not filed a notice of appeal from the

denial of his § 2255 motion, his request for a COA is not

properly before this court. See Dison v. Whitley,

(5th Cir. 1994). Accordingly, his request for COA is

dismissed for lack of jurisdiction. No. 01-50818 -3-

JUDGMENT AFFIRMED; ALL OUTSTANDING MOTIONS DENIED; REQUEST

FOR CERTIFICATE OF APPEALABILITY DISMISSED FOR LACK OF

JURISDICTION.