NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1148n.06
No. 11-6559 FILED
Nov 05, 2012
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE MIDDLE DISTRICT OF
) TENNESSEE
KEVIN WHITAKER, )
)
Defendant-Appellant. )
Before: MARTIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*
PER CURIAM. Kevin Whitaker, a pro se federal prisoner, appeals a district court order
denying his motion filed pursuant to Federal Rules of Civil Procedure 60(b)(6).
In 2001, Whitaker pleaded guilty to conspiracy to possess with the intent to distribute cocaine
and conspiracy to commit money laundering. A probation officer prepared a presentence report,
calculating Whitaker’s total offense level as thirty-eight and his criminal history category as II.
Whitaker objected to the probation officer’s criminal history computation, asserting that he would
soon be eligible for expungement of a prior conviction, which would result in a reduction of his
criminal history category from II to I. Pursuant to USSG § 5K1.1, the government moved for a
downward departure based on Whitaker’s substantial assistance. The government stated that the
parties agreed to jointly recommend a sentence of 151 months of imprisonment and that Whitaker
agreed to withdraw his objections to the presentence report. Whitaker withdrew his objections and
*
The Honorable Peter C. Economus, United States Senior District Judge for the Northern
District of Ohio, sitting by designation.
No. 11-6559
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the district court granted the government’s motion for a downward departure. The district court
subsequently sentenced Whitaker to 151 months of imprisonment.
Whitaker moved for reconsideration of his sentence, and the district court denied the motion.
He then filed a motion asking the district court to review and reduce his sentence, which the district
court denied. Whitaker next filed an application for a certificate of appealability, which the district
court also denied. More than six years later, Whitaker filed a motion asking the district court to
reclassify him as having a criminal history category of I. The district court denied the motion and
we affirmed this decision. See United States v. Whitaker, No. 09-6312 (6th Cir. Sept. 23, 2010).
Whitaker subsequently filed the instant Rule 60(b)(6) motion, and the district court denied the
motion.
We review the district court’s denial of a Rule 60(b) motion for an abuse of discretion. Jones
v. Ill. Cent. R.R. Co., 617 F.3d 843, 850 (6th Cir. 2010). The district court did not abuse its
discretion when it denied Whitaker’s Rule 60(b) motion because Rule 60(b) is not applicable to
criminal proceedings. Fed. R. Civ. P. 1. The district court’s order denying the Rule 60(b) motion
is affirmed.