United States v. Timothy Horton , 670 F. App'x 148 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6535
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY TYRONE HORTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:08-cr-00060-F-1; 5:13-cv-00100-F)
Submitted: October 28, 2016 Decided: November 4, 2016
Before AGEE and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Timothy Tyrone Horton, Appellant Pro Se. Jennifer P. May-
Parker, Assistant United States Attorney, Seth Morgan Wood,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Tyrone Horton seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C. § 2255 (2012) motion. The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012).
A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the motion states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85.
On appeal, Horton contends that his Armed Career Criminal
Act (“ACCA”) enhancement was improperly based on his North
Carolina convictions for common law robbery. Following the
district court’s order denying relief on this issue, we decided
United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016),
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holding that North Carolina common law robbery is not
categorically a crime of violence for ACCA purposes. Our
opinion in Gardner was not extant when the district court
previously ruled on the issue.
After Horton filed this appeal, however, he sought and
received resentencing in the district court without the ACCA
enhancement. Horton was resentenced to 120 months of
imprisonment as noted in his amended criminal judgment filed on
September 30, 2016. Thus, Horton’s appeal is moot.
Accordingly, we deny a certificate of appealability and dismiss
the appeal as moot. We 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.
DISMISSED
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