[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 15, 2006
No. 05-17169 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00917-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLENE ZULUAGA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 15, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Marlene Zuluaga (“Zuluaga”), proceeding pro se, appeals the
district court’s order denying her Fed. R. Civ. P. 60(b) motion to alter and/or
amend judgment. She argues that the Supreme Court amended the sentencing
guidelines with its decision in United States v. Booker, 543 U.S. 220, 125 S. Ct.
738, 160 L. Ed. 2d 621 (2005), and thus the district court should give retroactive
effect to the amendment and resentence her.
We review issues of subject-matter jurisdiction de novo. United States v.
Moore, 443 F.3d 790, 793 (11th Cir. 2006). The Federal Rules of Civil Procedure
“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 judgment in
a criminal case and, therefore, cannot be used to challenge a sentence, United
States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (addressing a challenge to a
criminal forfeiture).
Because Rule 60(b) does not offer relief from a criminal judgment, Zuluaga
is unable to collaterally attack her sentence through a Rule 60(b) motion.
Accordingly, we conclude that the district court did not have subject-matter
jurisdiction to grant her Rule 60(b) motion. To the extent that Zuluaga’s pro se
motion could be construed as one for relief under 18 U.S.C. § 3582(c)(2) or 28
U.S.C. § 2255, the decision in Booker is not an appropriate ground for relief in
2
either motion. Finally, we do not consider Zuluaga’s request to consider the Rule
60(b) motion as an independent action because she raised it for the first time in her
reply brief. Accordingly, we affirm the district court’s order denying Zuluaga’s
Rule 60(b) motion.
AFFIRMED.
3