[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MAY 6, 2011
No. 10-14248 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:05-cr-20144-PCH-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ISABEL GUERRA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 6, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Isabel Guerra appeals the district court’s order denying her Fed.R.Civ.P.
60(b) motion to alter or amend the order of forfeiture entered in her criminal case,
18 U.S.C. §§ 371, 1347, and 1956(a)(1)(B)(i) and (h). On appeal, Guerra contends
that the district court’s order denying her Rule 60(b) motion is constitutionally
defective because it requires her to pay an excessive fine, in violation of the
Eighth Amendment. She asserts that Rule 60(b) gave the district court the
authority to modify the forfeiture order based on changed circumstances. She also
suggests that the district court could have treated the Rule 60(b) motion as a
Fed.R.Crim.P. 41(g) motion for return of property or as a request for relief under
the All Writs Act, 28 U.S.C. § 1651(a). For the reasons stated below, we affirm.
I.
This is Guerra’s fourth appeal to this Court. In 2005, a jury convicted
Guerra of: (1) 1 count of conspiracy to defraud the United States, commit health
care fraud, and pay kickbacks, in violation of 18 U.S.C. § 371; (2) 15 counts of
health care fraud, in violation of 18 U.S.C. §§ 1347 and 2; (3) 1 count of
conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); and
(4) 3 counts of money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i)
and 2. The jury also returned a special verdict of forfeiture. The district court
sentenced Guerra to a total term of 99 months’ imprisonment. The court also
entered a preliminary order of forfeiture directing that Guerra forfeit certain real
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and personal property to the United States, including a monetary sum of
$9,405,114.90.
On direct appeal, we reversed Guerra’s convictions for three counts of
health care fraud, but affirmed her remaining convictions. United States v.
Medina, 485 F.3d 1291, 1297-1302 (11th Cir. 2007). We vacated Guerra’s
sentences because the district court had not made specific findings to support its
determination of the loss amount used to calculate Guerra’s guideline range. Id. at
1303-05. On remand, the district court sentenced Guerra to a total term of 70
months’ imprisonment. The district court also amended the preliminary order of
forfeiture to specify that Guerra would forfeit a monetary sum of $7,641,968.98.
Guerra filed a second appeal, challenging both the amended order of
forfeiture and her term of imprisonment. See United States v. Guerra, 307
Fed.Appx. 283, 284 (11th Cir. 2009) (“Guerra II”). We determined that the law of
the case doctrine barred Guerra’s challenge to the amended forfeiture order. Id. at
286-87. We explained that, because Guerra had not raised any arguments
concerning the forfeiture order in her first appeal, she had waived the right to do
so in a subsequent appeal. Id. Regarding Guerra’s term of imprisonment, we
concluded that the district court had incorrectly calculated her guideline range, but
we held that the error was harmless. Id. at 287-88.
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Following our decision in Guerra II, Guerra moved the district court to
correct her sentences under Fed.R.Crim.P. 35(a) and 36. She also filed a Rule
60(b) motion to set aside the amended order of forfeiture. In her Rule 60(b)
motion, she argued that the district court possessed authority to modify the
forfeiture order based on changed circumstances. She argued that the forfeiture
order violated the Eighth Amendment’s prohibition on excessive fines. The
district court denied Guerra’s motions under Rules 35(a) and 36, but did not rule
on Guerra’s Rule 60(b) motion at that time.
Guerra appealed, and we affirmed the denial of her Rule 35(a) and Rule 36
motions. United States v. Guerra, 391 Fed.Appx. 812 (11th Cir. 2010) (“Guerra
III”). We concluded that neither Rule 35(a) nor Rule 36 conferred jurisdiction on
the district court to modify Guerra’s sentences. Id. at 816-17. We determined that
we lacked jurisdiction to consider Guerra’s arguments concerning her Rule 60(b)
motion because the district court had not yet entered a final order disposing of that
motion. Id. at 817.
On remand, the district court entered a written order denying Guerra’s Rule
60(b) motion. Citing our decision in United States v. Mosavi, 138 F.3d 1365 (11th
Cir. 1998), the district court explained that Rule 60(b) was only applicable to civil
actions and could not be used to challenge a criminal forfeiture order. Guerra now
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appeals that order.
II.
We review de novo whether a district court has authority to modify a
defendant’s sentence. United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir.
2002). Guerra did not present her arguments regarding Rule 41(g) or the All Writs
Act in the proceedings before the district court. Therefore, we are reviewing those
arguments for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir. 2005) (noting that issues raised for the first time on appeal are reviewed
for plain error). Under the plain error standard, the defendant must establish:
“(1) error; (2) that is plain, and (3) that affects substantial rights.” Id. (quotation
omitted). If all three conditions are met, we have discretion to correct an error that
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted).
We have explained that a defendant may not use Rule 60(b) to challenge a
criminal forfeiture judgment. Mosavi, 138 F.3d at 1366. In Mosavi, the defendant
filed a Rule 60(b) motion challenging a forfeiture order in his criminal case. We
observed that the Federal Rules of Civil Procedure only applied to civil, not
criminal, proceedings. Id. We concluded that “Rule 60(b) simply does not
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provide for relief from judgment in a criminal case, and as such the defendant
cannot challenge the criminal forfeitures at issue under Fed.R.Civ.P. 60(b).” Id.
Under Federal Rule of Criminal Procedure 41(g), an individual whose
property has been seized by the government may file a motion for return of the
property. Fed.R.Crim.P. 41(g). Rule 41(g) provides a mechanism by which an
individual may recover property that the government has taken as evidence. We
have explained that Rule 41(g) cannot be used to recover property that has been
forfeited to the government in a civil forfeiture proceeding. United States v.
Eubanks, 169 F.3d 672, 674 (11th Cir. 1999); United States v. Watkins, 120 F.3d
254, 255 (11th Cir. 1997); see also Young v. United States, 489 F.3d 313, 315 (7th
Cir. 2007) (persuasive authority holding that a defendant cannot use Rule 41(g) to
challenge a criminal forfeiture order).
The All Writs Act provides: “The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a). The Supreme Court has explained that the All Writs Act is
limited in scope: “Where a statute specifically addresses the particular issue at
hand, it is that authority, and not the All Writs Act, that is controlling. Although
that Act empowers federal courts to fashion extraordinary remedies when the need
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arises, it does not authorize them to issue ad hoc writs whenever compliance with
statutory procedures appears inconvenient or less appropriate.” Pa. Bureau of
Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 361, 88 L.Ed.2d 189
(1985).
In this case, the district court properly denied Guerra’s Rule 60(b) motion.
As we explained in Mosavi, a defendant may not use Rule 60(b) to challenge a
judgment of forfeiture in a criminal case because Rule 60(b) only applies to civil
proceedings. See Mosavi, 138 F.3d at 1366. Also, Rule 41(g) was not an
appropriate form of relief in this case because that rule only permits the recovery
of property that has been seized as evidence, not property that has been forfeited to
the government. See Eubanks, 169 F.3d at 674; Watkins, 120 F.3d at 255; Young,
489 F.3d at 315.
In addition, the All Writs Act did not give the district court authority to
modify the forfeiture order. As the Supreme Court has explained, the All Writs
Act does not apply if there is a more specific statutory provision on point. See Pa.
Bureau of Corr., 474 U.S. at 43, 106 S.Ct. at 361. Here, 18 U.S.C. § 3742(a)
provides that a defendant may appeal his sentence to a court of appeals. Guerra
was required to follow that procedure to challenge the forfeiture order, rather than
seeking relief under the All Writs Act. Because the district court did not have the
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authority to modify Guerra’s sentences, we need not address her argument that the
forfeiture order violates the Excessive Fines Clause of the Eighth Amendment.
Accordingly, after review of the record and the parties’ briefs, we affirm.
AFFIRMED.
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