United States v. Darrell Banks

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6280
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL EUGENE BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00052-MR-1)
Submitted: July 29, 2016 Decided: August 3, 2016
Before GREGORY, Chief Judge, and NIEMEYER and MOTZ, Circuit
Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Darrell Eugene Banks, Appellant Pro Se. Thomas Richard Ascik,
Donald David Gast, Assistant United States Attorneys, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Eugene Banks appeals the district court’s order
denying his motion for a sentence reduction. Insofar as Banks
challenges the district court’s denial of his motion under
18 U.S.C. § 3582(c)(2) (2012), we review de novo a district
court’s determination regarding the scope of its legal authority
under that provision. See United States v. Williams, 808 F.3d
253, 256 (4th Cir. 2015). We have reviewed the record and find
no error in the district court’s conclusion that it lacked
authority to grant a reduction. We therefore affirm the
district court’s order in part.
Insofar as Banks challenges the district court’s denial of
his motion as an unauthorized, successive 28 U.S.C. § 2255
(2012) motion, that portion of the court’s 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).
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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.
We have independently reviewed the record and conclude that
Banks has not made the requisite showing. Accordingly, we deny
a certificate of appealability and dismiss the appeal in part.
We deny Banks’ motion for immediate release. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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