United States v. Smith ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6975
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALFRED E. SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-96-54)
Submitted: September 30, 2003 Decided: October 8, 2003
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alfred E. Smith, Appellant Pro Se. Thomas Richard Ascik, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alfred Smith seeks to appeal the district court’s order
denying his petition for a writ of error coram nobis filed under 28
U.S.C. § 1651 (2000). We have reviewed the record and the district
court’s order and find no reversible error. Although the district
court resolved Smith’s claims on the merits, a writ of error coram
nobis is available only when the petitioner is not in custody.
See, e.g., United States v. Sawyer, 239 F.3d 31, 37 (1st Cir.
2001). As Smith is in federal custody by virtue of his supervised
release status, see United States v. Pregent, 190 F.3d 279, 283
(4th Cir. 1999), he is not entitled to relief under § 1651. United
States v. Noske, 235 F.3d 405, 406 (8th Cir. 2000). Accordingly,
we affirm the district court’s order denying relief on that basis.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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