United States v. Tajrick Conaway

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 10-12154 ELEVENTH CIRCUIT Non-Argument Calendar NOVEMBER 9, 2010 ________________________ JOHN LEY CLERK D.C. Docket No. 7:00-cr-00004-WLS-2 UNITED STATES OF AMERICA, lllllllllllllllllllll Plaintiff-Appellee, versus TAJRICK CONAWAY, lllllllllllllllllllll Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Georgia ________________________ (November 9, 2010) Before TJOFLAT, CARNES and MARCUS, Circuit Judges. PER CURIAM: On August 29, 2000, appellant having pled guilty to a two-count indictment charging him with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and possession of marijuana, in violation of 21 U.S.C. § 844, was sentenced by the district court to concurrent prison terms of 292 months.1 Subsequently, in United States v. Conaway, 326 Fed.Appx 545 (11th Cir. 2009), we affirmed the district court’s denial of appellant’s motion to reduce his sentences pursuant to 18 U.S.C. § 3582(c). Following the issuance of the mandate, appellant, on August 18, 2009, moved the district court pursuant to Fed. R. Civ. P. 60(b)(6) to amend its order denying him § 3582(c) relief. The court denied the motion on April 7, 2010. Appellant moved the court under Fed. R. Civ. P. 59(c) to reconsider its April 7 order denying Rule 60(b)(6) relief. The court denied the Rule 59(c) motion on April 27, 2010, and appellant now appeals that ruling. A motion filed under § 3582(c)(2) “is not a civil post-conviction action, but rather a continuation of a criminal case.” United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003). Thus, a defendant cannot employ Rule 60(b) to challenge the district court’s denial of § 3582(c) relief. Id. (holding that appellant could not use Rule 60(b)(4) to attack the district court’s order denying his §3582(c)(2) motion). In short, the district court lacked jurisdiction to entertain appellant’s 1 Appellant was sentenced as a career offender under U.S.S.G. § 4B1.1. The Guidelines sentencing range was 292 to 365 months. 2 motions under Rule 60(b)(6). AFFIRMED. 3