concurring in part and concurring in the judgment.
I concur in Parts I, II, IV, and V of the majority opinion. As to Part III, I would not reach the question of whether the district court lacked subject-matter jurisdiction under Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959), to rule on the Government’s Criminal Rule 35(b) motions. Instead, and with respect to the majority, I would conclude that Hartwell’s Smith argument is untimely. Because the majority rejects Hartwéll’s Smith argument on its merits, concluding that the district court did not lack subject-matter jurisdiction, I concur in the judgment.
To understand my analysis of this case, it is helpful to keep in mind its procedural posture — Hartwell is appealing the district court’s order allowing the Government to withdraw its Criminal Rule 35(b) motion. In his brief on appeal, Hartwell argued for the first time that the district court lacked subject-matter jurisdiction under Smith to enter his conviction and sentence. The majority concludes that this argument is not properly before us on this appeal. See ante at 714 -15 (“[W]e note our agreement with the government’s position that judicial policy strongly favors that convictions and sentences become final. Any challenges to a criminal judgment after the appellate process is complete therefore may generally be brought only pursuant to a specific authorization for collateral review, such as 28 U.S.C. § 2255.” (internal footnotes omitted)).
I agree with this conclusion because it is required by Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure. That Rule states that “at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court’s jurisdiction.” Fed.R.Crim.P. 12(b)(3)(B) (emphasis added). The district court entered judgment on Hartwell’s conviction and sentence on August 18, 2000, and the conviction and sentence became final well before Hartwell raised his Smith argument on this appeal. See Fed. R.App. P. 4(b)(l)(A)(i-ii) (providing that the defendant must file an appeal of his sentence within ten days of the entry of judgment or within ten days of the Government’s filing of á notice of appeal). Once Hartwell’s conviction and sentence became final and Hartwell failed to file a timely appeal, his criminal case was no longer “pending” for purposes of Rule 12(b)(3)(B), despite the fact that his sentence could be modified as authorized by Congress, such as under Criminal Rule 35(b) or 18 U.S.C.A. § 3582(c) (West Supp. 2005). See United States v. Sanders, 247 F.3d 139, 143 (4th Cir.2001) (noting that under the plain language of § 3582(b), the fact that a sentence can be modified pursuant to Criminal Rule 35(b) or § 3582(c) does not affect the finality of the conviction and sentence “for all other purposes”); see also United States v. Valadez-Camarena, 402 F.3d 1259, 1260 (10th Cir.2005) (rejecting jurisdictional challenge to a final conviction and sentence without considering merits of the challenge because the case was no longer “pending” under Criminal Rule 12(b)(3)(B)); United States v. Wolff, *721241 F.3d 1055, 1056-57 (8th Cir.2001) (“[A]fter final judgment [on the defendant’s conviction and sentence] was entered and [the defendant] did not file a direct appeal, the [criminal] proceeding[] w[as] no longer pending [for purposes of the precursor to Criminal Rule 12(b)(3)(B)].”). At that time, his conviction and sentence became insulated from jurisdictional challenge except in a collateral proceeding, such as a proceeding under 28 U.S.C.A. § 2255 (West Supp.2005).
In addition to arguing that the district court lacked subject-matter jurisdiction under Smith to enter his conviction and sentence, Hartwell also argues that the district court lacked subject-matter jurisdiction under Smith to rule on the Government’s Criminal Rule 35(b) motions. In addressing this argument, the majority concludes that if the district court indeed lacked subject-matter jurisdiction under Smith to enter Hartwell’s conviction and sentence, then his conviction and sentence would be void, and the district court would lack subject-matter jurisdiction to rule on any Criminal Rule 35(b) motion to modify his sentence. See ante at 714 n. 1 (noting that a conviction and sentence entered without subject-matter jurisdiction is “void” and therefore may not “legitimately be ... decreased”). The majority ultimately rejects Hartwell’s argument, however, concluding that Smith did not render the district court without subject-matter jurisdiction to enter his conviction and sentence.
I disagree with the majority’s conclusion that if the district court lacked subject-matter jurisdiction under Smith to enter Hartwell’s conviction and sentence, it would also lack subject-matter jurisdiction to rule on the Government’s Criminal Rule 35(b) motions, and I therefore would not reach the question of whether the district court lacked subject-matter jurisdiction under Smith to enter Hartwell’s conviction and sentence. In my view, Hartwell’s failure timely to raise his Smith argument while his criminal case was “pending” precludes him from now arguing that Smith requires us to conclude that the district court lacked subject-matter jurisdiction to rule on the Government’s Criminal Rule 35(b) motions for the same reason that Hart-well’s failure to raise his Smith argument while his criminal case was “pending” precludes him from now arguing that Smith requires us to vacate his conviction and sentence. Criminal Rule 12(b)(3)(B) does not countenance jurisdictional attacks on an indictment when the defendant’s criminal case is no longer “pending” (except, of course, when the challenge comes on collateral review). The Rule permits of no exceptions, even when a jurisdictional attack on the indictment is a logical predicate to a further attack on the district court’s subject-matter jurisdiction to hear a Criminal Rule 35(b) motion to modify the defendant’s sentence. To consider Hart-well’s Smith argument — even to the extent it challenges the district court’s subject-matter jurisdiction to rule on the Government’s Criminal Rule 35(b) motions — allows an argument to slip through the back door when Rule 12(b)(3)(B) has already closed the front.
The majority reasons that we must consider the merits of Hartwell’s Smith argument insofar as it challenges the district court’s subject-matter jurisdiction to rule on the Government’s Criminal Rule 35(b) motions because questions of subject-matter jurisdiction go to the power of the court to hear a case and therefore “can never be forfeited or waived.” Ante at 715 (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). A close study of our case law, however, reveals that this statement of law is not absolute. I explain why by discussing one of our recent civil cases.
*722In Wendt v. Leonard, 431 F.3d 410 (4th Cir.2005), Wendt filed an action against Leonard, who, acting pursuant to state-conferred authority, had seized Wendt’s boat to satisfy a tax lien. Id. at 411. The district court dismissed the action for lack of subject-matter jurisdiction under the Tax Injunction Act. Id. After the district court dismissed the suit, Leonard filed a motion for sanctions, which Wendt did not oppose. Id. at 412. Concluding that sanctions were inappropriate, the district court instead awarded Leonard attorney’s fees, concluding that Wendt’s suit was frivolous. Id. Wendt did not appeal the district court’s award of attorney’s fees, but six months later he filed a motion under Rule 60(b)(4) of the Federal Rules of Civil Procedure — which authorizes district courts to vacate an otherwise final order if “the judgment is void” — arguing that the district court lacked subject-matter jurisdiction over his suit and, accordingly, that it also lacked subject-matter jurisdiction to award attorney’s fees to Leonard. Id.
On Wendt’s appeal of the district court’s denial of his Civil Rule 60(b)(4) motion, we noted:
An order is “void” for purposes of [Civil] Rule 60(b)(4) ... if the court rendering the decision lacked ... subject matter jurisdiction.... Despite this seemingly broad statement, we narrowly construe the concept of a “void” order under [Civil] Rule 60(b)(4) precisely because of the threat to finality of judgments and the risk that litigants ... will use [Civil] Rule 60(b)(4) to circumvent an appeal process they elected not to follow. In other words, a lack of subject matter jurisdiction will not always render a final judgment void [under Civil Rule 60(b)(4) ]. Only when the jurisdictional error is egregious will courts treat the judgment as void.
Thus, when deciding whether an order is “void” under [Civil] Rule 60(b)(4) for lack of subject matter jurisdiction, courts must look for the rare instance of a clear usurpation of power. A court plainly usurps jurisdiction only when there is a total want of jurisdiction and [there is] no arguable basis on which it could have rested a finding that it had jurisdiction.
Id. at 413 (internal citations and quotation marks omitted). Applying this legal standard, we concluded that it was immaterial whether the district court had subject-matter jurisdiction to enter attorney’s fees against Wendt because the district court had “an arguable basis” for asserting subject-matter jurisdiction to do so. Id. at 414. See also Des Moines Navigation & R. Co. v. Iowa Homestead Co., 123 U.S. 552, 8 S.Ct. 217, 31 L.Ed. 202 (1887) (holding that defense of lack of subject-matter jurisdiction over prior suit could not be raised to defeat res judicata effect of the prior, final judgment) (cited with approval in Kontrick v. Ryan, 540 U.S. 443, 455 n. 9, 124 S.Ct. 906, 157 L.Ed.2d 867 (2005)).
I do not discuss Wendt to argue that it directly controls here; Wendt was a civil case, whereas Hartwell’s appeal relates to his criminal sentence. Instead, I discuss Wendt to show that considerations of finality dictate that issues of subject-matter jurisdiction can be waived in certain situations despite the fact that such issues go to the very power of the court to hear the case. Under Wendt, then, a more accurate statement of law than “issues of subject-matter jurisdiction cannot be forfeited or waived” is that “issues of subject-matter jurisdiction can never be forfeited or waived while the case is pending, but such issues can be deemed forfeited or waived once the judgment becomes final and is not appealed.” In other words, while Hartwell may challenge, even for the first time on appeal, the district court’s subject-matter jurisdiction to rule on the Government’s Rule 35(b) motions, he may not do so by attacking the jurisdictional integrity of *723his conviction and sentence. The time to make that challenge has come and gone, and we must now treat Hartwell’s conviction and sentence as if they were validly entered.*
In my view, Criminal Rule 12(b)(3)(B), like Civil Rule 60(b)(4), embodies this idea; indeed, it is even more rigid than Civil Rule 60(b)(4). Civil Rule 60(b)(4) allows a civil litigant to prevail on an argument that the district court lacks subject-matter jurisdiction on a matter presently before the court because it lacked subject-matter jurisdiction over a prior matter if the prior jurisdictional error was “egregious.” Wendt, 431 F.3d at 413. Criminal Rule 12(b)(3)(B), on the other hand, provides that the entry of a final conviction' and sentence bars argument that the district court lacks subject-matter jurisdiction on a matter presently before the court because it lacked subject-matter jurisdiction to enter the defendant’s conviction and sentence in the first place. Of course, a criminal defendant has a statutory collateral avenue for attacking the district court’s subject-matter jurisdiction to enter his conviction and sentence even after they have become final and, unlike a civil litigant challenging the validity of a prior judgment under Civil Rule 60(b)(4), the criminal defendant proceeding collaterally need not show that the jurisdictional defect in his conviction and sentence is “egregious” but only that it exists. Hartwell, however, has not pursued this avenue of relief, and Criminal Rule 12(b)(3)(B) requires that we treat his conviction and sentence as though the district court had subject-matter jurisdiction to enter it, even if, on collateral review, we would conclude that the district court was without such jurisdiction.
In addition to its analytic difficulties, the majority’s reasoning has practical problems. Consider, for example, the following facts: The Government indicts a defendant on a felony and tries his case before a federal magistrate judge. The defendant does not argue that the magistrate judge is without power to convict him — an argument that would almost certainly prevail under 18 U.S.C.A. § 3401(a) (West Supp. 2005) (“When specially designated to exercise such jurisdiction by the district court or courts he serves, any United States magistrate judge shall have jurisdiction to try persons accused of, and sentence persons convicted of, misdemeanors committed within that judicial district” (emphasis added)) — and the Government secures a conviction. The defendant neither timely appeals nor files a timely petition under § 2255. The Sentencing Commission later retroactively lowers the sentencing range *724in which the defendant was sentenced, and the defendant files a motion with the district court to reduce his sentence in accord with the amendment. See 18 U.S.C.A. § 3582(c)(2) (authorizing the district court to reduce a defendant’s sentence if the Sentencing Commission retroactively reduces the sentencing range in which defendant was sentenced). In considering the merits of his motion, the district court becomes aware that the magistrate judge was without power to enter the defendant’s conviction and sentence. Under the majority’s analysis the defendant would not only be unable to secure his release from prison, see ante at 714 (“[W]e note our agreement with the government’s position that judicial policy strongly favors that convictions and sentences become final. Any challenges to a criminal judgment after the appellate process is complete therefore may generally be brought only pursuant to a specific authorization for collateral review, such as 28 U.S.C. § 2255.” (internal footnotes omitted)), he would also be unable obtain the § 3582 reduction to which he is entitled — for if the magistrate judge was without jurisdiction to enter the conviction and sentence, the majority would view the sentence as “void,” and conclude that the district court lackes jurisdiction to take any action on the sentence, see ante at 714 n. 1 (noting that a conviction and sentence entered without subject-matter jurisdiction is “void” and therefore may not “legitimately be ... decreased”). In addition to its evident unfairness, this result fails to accord a defendant’s sentence and conviction the respect that Criminal Rule 12(b)(3)(b) requires.
In sum, the time for Hartwell to raise Smith has come and gone (except on collateral review). Until his conviction and sentence are vacated on collateral review, interests in finality dictate that we must treat them as if they are valid. Because of the analytic and practical difficulties created in Part III of the majority’s opinion, I concur in part and concur in the judgment.
Nothing in the primary cases cited by the majority — Arbaugh v. Y & H Corp., - U.S. -, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), and Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)— is to the contrary. While it is true, as the majority suggests, that each of those cases state that subject-matter jurisdiction cannot be waived, they do so in the context of a live appeal, but not, as here, in the context of an attack on a final judgment for which the time to appeal has long-since passed. Arbaugh, 126 S.Ct. at 1241 (jurisdictional argument first raised after trial but before time to appeal lapsed); Cotton, 535 U.S. at 629, 122 S.Ct. 1781 (jurisdictional argument first raised on direct appeal); Steel Co., 523 U.S. at 88, 118 S.Ct. 1003 (jurisdictional argument first raised in petition for certiorari with the Supreme Court). Harmonizing these cases with Kontrick v. Ryan, 540 U.S. 443, 455 n. 9, 124 S.Ct. 906, 157 L.Ed.2d 867 (2005), Des Moines Navigation & R. Co. v. Iowa Homestead Co., 123 U.S. 552, 8 S.Ct. 217, 31 L.Ed. 202 (1887), and Wendt v. Leonard, 431 F.3d 410 (4th Cir.2005) produces the rule I have stated in the text — “issues of subject-matter jurisdiction can never be forfeited or waived while the case is pending, but such issues can be deemed forfeited or waived once the judgment becomes final and is not appealed.”