United States v. Ramon Blanco

Case: 15-11767 Date Filed: 11/24/2015 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-11767
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-20756-WPD-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON BLANCO,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(November 24, 2015)

Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

Ramon Blanco appeals the district court’s denial of his motion to vacate the
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court’s prior order denying his 18 U.S.C. § 3582(c)(2) motion to reduce his

sentence.

In 2008, a jury found Blanco guilty of conspiracy to possess with intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), 846; attempt to possess with intent to distribute five

kilograms or more of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), 846; conspiracy to obstruct commerce by means of

robbery, in violation of 18 U.S.C. § 1951(a); attempt to obstruct commerce by

means of robbery, in violation of 18 U.S.C. §§ 2, 1951(a); conspiracy to use and

carry a firearm during and in relation to a crime of violence and a drug trafficking

crime, and to possess a firearm in furtherance of such crimes, in violation of 18

U.S.C. § 924(o); and carrying a firearm during and in relation to a crime of

violence and a drug trafficking crime, and possessing a firearm in furtherance of

such crimes, in violation of 18 U.S.C. § 924(c). The district court sentenced

Blanco to a total of 295 months’ imprisonment.

On November 10, 2014, Blanco moved to reduce his sentence under 18

U.S.C. § 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines, which

lowered the base offense levels for most drug offenses. The district court denied

the motion on November 13, 2014, stating that, while the amendment had lowered

Blanco’s advisory guideline range, a sentence reduction was not warranted under

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the 18 U.S.C. § 3553(a) factors. On January 14, 2015, Blanco filed a motion

“requesting redress” of the order denying his § 3582(c)(2) motion. The district

court denied Blanco’s motion, which it construed as a motion for reconsideration.

On April 1, 2015, Blanco filed the pro se motion giving rise to the current

appeal. Blanco styled the motion as a “Motion Seeking the Court to Vacate a Void

Judgment in the Criminal Proceeding Brought Under 18 USC § 3582(c)(2) Based

on a Exacerbation of the Criminal History and a Fallacy by the Government to

Deny Relief,” in which he “move[d] the court to vacate the judgment entered on

November 13, 2014” denying his § 3582(c)(2) motion. The district court liberally

construed the motion as either a Motion for Reconsideration under Federal Rules

of Criminal Procedure 35(a) or a Motion to Vacate under Federal Rules of Civil

Procedure 60(b). The court then denied the motion, stating that a motion for

reconsideration was untimely and not properly before the court, and that Rule

60(b) of the Federal Rules of Civil Procedure was inapplicable to this criminal

proceeding. This appeal followed. On appeal, Blanco argues that the district court

abused its discretion in denying his motion to vacate.

We review de novo a district court’s legal conclusions regarding the scope of

its authority under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326

(11th Cir. 2008).

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The analysis in this case turns on whether Blanco’s April 1 motion is

construed as a Motion for Reconsideration under the Federal Rules of Criminal

Procedure or a Motion to Vacate under the Federal Rules of Civil Procedure. But

the result is the same either way. Neither of these procedural devices offers relief.

“The authority of a district court to modify an imprisonment sentence is

narrowly limited by statute.” United States v. Phillips, 597 F.3d 1190, 1194-95

(11th Cir. 2010). A district court may only modify a term of imprisonment when

one of three conditions are met: (1) the Director of the Bureau of Prisons has filed

a motion to reduce sentence and other conditions are met; (2) another statute or

Federal Rule of Criminal Procedure 35 expressly permits a sentence modification;

or (3) the defendant has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c). This case concerns only the second of those

conditions. Federal Rule of Criminal Procedure 35(a) provides that, within 14 days

after sentencing, a district court “may correct a sentence that resulted from

arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a). In Phillips,

we held that a § 3582(c)(2) proceeding wherein a sentence is modified is a

“sentencing” for the purposes of Rule 35(a). 597 F.3d at 1197-98. In United States

v. Anderson, 772 F.3d 662 (11th Cir. 2014), we held that the reasoning in Phillips

“also extends to cases in which a district court denies a defendant’s § 3582(c)(2)

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motion on the merits after considering the § 3553(a) factors.” Id. 667. In such a

case, “the district court’s authority to consider a defendant’s successive motion is

likewise limited in this circumstance to Rule 35’s fourteen-day time limitation.” Id.

Federal Rule of Civil Procedure 60(b) provides that “the court may relieve a

party or its legal representative from a final judgment, order, or proceeding” for a

number of reasons. That Rule, however, does not provide for relief from a

judgment in a criminal case. United States v. Mosavi, 138 F.3d 1365, 1366 (11th

Cir. 1998). Thus, we have held that Rule 60(b)(4), providing for relief from a

judgment on the ground that the judgment is void, is not available to a defendant

challenging his sentence under § 3582(c)(2), because a § 3582(c)(2) motion is a

continuation of a criminal case and not a civil post-conviction action. United

States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003).

Here, the district court properly concluded that it lacked authority to

consider Blanco’s April 1 motion to vacate its prior order denying his § 3582(c)(2)

motion. To the extent Blanco sought to vacate or void the order denying his

§ 3582(c)(2) motion pursuant to Federal Rule of Civil Procedure 60(b), Rule 60(b)

does not provide for relief from denial of a § 3582(c)(2) motion. See Fair, 326

F.3d at 1318; Mosavi, 138 F.3d at 1366. To the extent Blanco’s April 1 motion

should be considered a motion to reconsider, his motion was subject to Federal

Rule of Criminal Procedure 35(a)’s 14-day time limitation, due to the district

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court’s denial of his § 3582(c)(2) motion on the merits, and was untimely. See

Anderson, 772 F.3d at 666-67; Fed. R. Crim. P. 35(a).

AFFIRMED.

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