[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 14, 2008
No. 07-14599 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-14010-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT CLARENCE POTTS, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 14, 2008)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Robert Clarence Potts, III, appeals the district court’s denial of his pro se
motion brought pursuant to Fed.R.Civ.P. 60(b). For the reasons set forth below,
we affirm.
I.
In 1998, a federal grand jury returned a superseding indictment, charging
Potts with: possession with intent to distribute crack cocaine, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 1); possession of unregistered
firearms, in violation of 26 U.S.C. §§ 5861(d) and 5871, and 18 U.S.C. § 2 (Count
2); use of a firearm in relation to a drug-trafficking crime, in violation of 18 U.S.C.
§§ 924(c) and 2 (Count 3); and being a felon in possession of firearms, in violation
of 18 U.S.C. §§ 922(g)(2) and 924(a)(2). After a jury trial, the court entered a
judgment of conviction against Potts on Counts 1, 2, and 4, imposing a life
sentence as to Count 1 and concurrent sentences of 120 months’ imprisonment as
to Counts 2 and 4. After a direct appeal and a remand from the Supreme Court in
light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), we affirmed Potts’s convictions and sentences in 2001.
In 2007, Potts’s filed the instant Fed.R.Civ.P. 60(b)(3) motion, arguing that
“the Honorable Magistrate Judge and the Government Attorneys perpetrated fraud
upon the federal court by misinforming Petitioner at arraignment about the possible
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maximum penalty he faced on the Count One Drug Charge.” Specifically, Potts
argued that, despite being informed that he faced a maximum sentence of life
imprisonment, he was subject only to a statutory maximum sentence of 30 years’
imprisonment under 21 U.S.C. § 841(b)(1)(C) because no drug quantity was
charged in the indictment. As a result, he requested that the district court “reverse
the conviction and sentences in the instant case . . . .” The motion was filed in the
same court and under the same case number as the original criminal case.
The district court summarily denied Potts’s Rule 60(b) motion without
explanation. This appeal followed.
II.
“This court typically reviews a district court’s ruling upon a Rule 60(b)
motion for abuse of discretion.” Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.
2001). However, we “review questions concerning a district court’s subject matter
jurisdiction de novo.” United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.
2008) (emphasis added), petition for cert. filed, (U.S. No. 08-137) (July 30, 2008).
Rule 60(b) of the Federal Rules of Civil Procedure provides, inter alia, that
the district court “may relieve a party or its legal representative from a final
judgment, order, or proceeding” if there is “fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.”
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Fed.R.Civ.P. 60(b)(3). However, it is well-established that the Federal Rules of
Civil Procedure do not provide for relief from judgment in a criminal case.
See Fed.R.Civ.P. 1 (“These rules govern the procedure in all civil actions and
proceedings . . . .”) (emphasis added).
In United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998), a
defendant brought a Rule 60(b) motion challenging criminal forfeiture orders
entered in his criminal case. Concluding that the “district court lacked the subject
matter jurisdiction necessary to provide relief under Rule 60(b),” we affirmed the
district court’s denial of the Rule 60(b) motion. Id. at 1365-66. We explained
“that the defendant cannot challenge the criminal forfeiture orders at issue under
the Federal Rules of Civil Procedure” because “[t]he judgment and order that the
defendant contests were entered, not in a civil case, but in a criminal case . . . .” Id.
at 1366. In other words, “Rule 60(b) simply does not 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.
III.
In this case, there is no dispute that Potts’s Rule 60(b) motion sought relief
from the judgment in his criminal case. In the motion, he argued that, due to the
indictment’s failure to allege drug quantity, he was misinformed regarding the
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applicable statutory penalties. In his prayer for relief, he specifically requested the
district court to “reverse his conviction and sentences in the instant case.” Further,
the motion was filed in the same court and under the same case number as the
original criminal case. Nor did the motion refer to or request the district court to
reconsider any previous ruling in a civil action. In sum, because Potts’s Rule 60(b)
motion sought relief from the judgment entered in his criminal case, the district
court lacked subject matter jurisdiction to grant Potts relief. Mosavi, 138 F.3d at
1365-66. Accordingly, we affirm.
AFFIRMED.
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