[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 11, 2006
No. 04-13380 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-06003-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN C. GEORGE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 11, 2006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
John C. George, Jr., a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion to recall the court’s amended criminal judgment under
Fed.R.Civ.P. 60(b). We affirm.
In 1994, George and numerous others were convicted of conspiracy to
possess with intent to distribute crack and possession with intent to distribute
crack, in violation of 21 U.S.C. §§ 846 and 841, and engaging in a Continuing
Criminal Enterprise, in violation of 21 U.S.C. § 848. In 1996, the court sentenced
George to concurrent terms of life imprisonment.
George directly appealed the convictions to this court, arguing, inter alia,
that the convictions for CCE and conspiracy violated the Double Jeopardy Clause.
The court held that the district court committed reversible error in convicting
George of both a CCE and conspiracy, vacated the conspiracy conviction, and
remanded for the entry of an amended judgment reflecting the merger of the
conspiracy conviction into the CCE conviction and for any necessary further
proceedings.
On remand, the district court scheduled a resentencing hearing, which it later
cancelled without objection. In 1998, the court entered an order amending its prior
judgment to reflect the merger of the conspiracy and CCE counts, but did not alter
any other part of the prior judgment or the sentences.
George did not directly appeal the amended judgment. Instead, George filed
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a motion to vacate under 28 U.S.C. § 2255, which the district court denied on the
merits in 2000. Thereafter, George filed several motions challenging his life
sentences. The district court denied these motions, and George did not appeal.
In 2004, George filed the present pro se motion to “recall” the amended
criminal judgment, citing Fed.R.Civ.P. 60(b) in support of his request. George
argued that the district court erred in failing to vacate his conspiracy conviction
and in cancelling his resentencing hearing. The district court summarily denied the
motion. George now appeals.
We review issues of subject matter jurisdiction de novo. Brown v. Snow,
440 F.3d 1259, 1262 (11th Cir. 2006).
George is not entitled to relief under any construction of his Rule 60(b)
motion.1 First, George’s motion cannot be construed as a direct appeal of the
amended judgment of his convictions and sentences, as it was not filed within 10
days from the entry of judgment. Fed.R.App.P. 4(b).
Second, to the extent that George was attempting to challenge his underlying
criminal judgment in a collateral manner, the district court had no jurisdiction to
consider a second or successive § 2255 motion without leave from this court. See
1
We liberally construe pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998).
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28 U.S.C. § 2255.2
Finally, George relies on Fed.R.Civ.P. 60(b) as the basis for his motion. The
Federal Rules of Civil Procedure, however, “govern the procedure in the United
States district courts in all suits of a civil nature . . . .” Fed.R.Civ.P. 1. While Rule
60(b) provides for relief from a final judgment, see Fed.R.Civ.P. 60(b), it does not
provide for relief from a judgment in a criminal case. United States v. Fair, 326
F.3d 1317, 1318 (11th Cir. 2003); United States v. Mosavi, 138 F.3d 1365, 1366
(11th Cir. 1998) (addressing a challenge to a criminal forfeiture). Therefore, the
district court did not have subject-matter jurisdiction to grant George’s Rule 60(b)
motion.
Accordingly, we construe the district court’s denial of the motion as a
dismissal, Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003), and
AFFIRM.
2
Because George’s Rule 60(b) motion is not seeking reconsideration of the order denying
habeas corpus relief on a non-merits ground, the Supreme Court’s decision in Gonzalez v. Crosby,
545 U.S. __, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), is not implicated here.
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