Spinney v. United States , 33 F. App'x 540 ( 2002 )

PER CURIAM.

Jeffrey W. Spinney has appealed an order of the district court dismissing his motion filed pursuant to 18 U.S.C. § 8582(c)(2). The notice of appeal appears untimely as it was not filed within ten days of the August 3, 2001 entry of the order denying reconsideration of the July 6, 2001 order of dismissal. See Fed. R.App. P. 4(b) (reciting that a notice of appeal in a criminal case must be filed within ten days).

In any event, Spinney does not contest the basis for the district court’s ruling. He therefore has waived any challenge to that decision. See United States v. Dietz, 950 F.2d 50, 54 (1st Cir.1991). Instead, Spinney raises a claim not presented in the district court. The claim does not appear to be an appropriate claim to raise in a § 3582(c)(2) motion and, further, appears dubious in light of this court’s conclusion in Spinney’s direct appeal that there was sufficient evidence to support his conviction for aiding and abetting armed robbery in violation of 18 U.S.C. § 2113(d). United States v. Spinney, 65 F.3d 231, 234-38 (1st Cir.1995). But, because Spinney did not raise this new claim below, we decline to address it. See United States v. Dietz, 950 F.2d at 55.

The district court’s order of dismissal is affirmed.