[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 3, 2008
No. 08-12281 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20245-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO FELIX,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 3, 2008)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
On February 4, 2005, appellant Gilberto Felix pled guilty pursuant to a plea
agreement to four counts of a forty-nine count indictment: Count 1, conspiracy to
defraud the United States; Count 11, possession of fictitious obligations intended
to defraud the United States; Count 27, passing fictitious obligations; and Count
43, misuse of a social security number. The district court sentenced him to
concurrent sentences of imprisonment totaling 168 months. We dismissed his
appeal of his convictions and sentences because, in executing the plea agreement,
he waived the right to appeal.
On January 23, 2007, Felix moved the district court pursuant to 28 U.S.C. §
2255 to vacate his convictions and sentences. The court denied his motion. Then,
on January 18, 2008, he moved the district court pursuant to Federal Rule of
Criminal Procedure 16(a)(1)(E) to require the Government to produce audio
recordings and communications on the ground that they constituted Brady
material.1 The district court denied the motion.
Although it is not apparent from the district court’s order denying the motion
that the court treated it as a successive § 2255 motion, a reading of the motion
indicates that it does seek relief from Felix’s convictions and sentences. To the
extent that the motion sought such relief, it was due to be denied, because Felix
had not obtained leave of this court to file it. See 28 U.S.C. § 2255. The court was
1
See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
2
also obliged to deny Rule 16 relief because the court lacked jurisdiction to consider
the motion. Rule 16 imposes on the Government an ongoing duty to disclose
information “before or during trial.” Nothing in the rule grants the district courts
the authority to enforce the rule long after the criminal case has concluded. The
district court’s order denying Felix’s motion is, accordingly,
AFFIRMED.
3