[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 8, 2003
No. 02-12229
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 96-00089-CR-FTM-24
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARVEY KEITH FAIR,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(April 8, 2003)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Appellant Harvey Keith Fair, a pro se federal prisoner, appeals the district
court’s denial of his motion pursuant to Federal Rule of Civil Procedure 60(b)(4).
After review, we affirm.
Fair pled guilty to one count of possessing a firearm while being a convicted
felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). After filing an unsuccessful
§ 2255 motion, Fair sought to correct alleged deficiencies in his sentence via 18
U.S.C. § 3582(c)(2).1 The district court denied Fair’s § 3582(c)(2) motion and Fair
appealed. The merits of Fair’s underlying § 3582(c)(2) motion are the subject of a
separate appeal, number 03-11211, which remains pending.
After filing his notice of appeal as to his § 3582(c)(2) motion, Fair filed another
motion pursuant to Rule 60(b)(4) that merely reiterated his § 3582(c)(2) claims. The
district court denied the Rule 60(b)(4) motion and Fair again appealed. The only
issue in this appeal is the denial of Fair’s Rule 60(b)(4) motion.
Although there are considerable deficiencies in Fair’s arguments on the merits,
we need not discuss them because Rule 60(b)(4) is a civil motion that is not available
to an individual challenging his sentence under § 3582(c)(2).
Unlike forms of post-conviction relief which has been deemed civil in nature,
see, e.g., Fisher v. Baker, 203 U.S. 174, 181 (1906) (habeas corpus proceedings),
1
Section 3582(c)(2) allows for the modification of a defendant’s sentence based on
subsequent changes in the sentencing guidelines.
every circuit court which has address § 3582(c)(2) has determined that it is criminal
in nature and therefore covered by rules applying to criminal cases, not civil cases.
See, e.g., United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246-47 (10th Cir.
2003) (concluding civil Rule 4(a)(1)(B) for time to appeal does not apply to
§ 3582(c)(2)); United States v. Arrango, 291 F.3d 170, 171-72 (2d Cir. 2002) (same);
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (same); United States v.
Petty, 82 F.3d 809, 810 (8th Cir. 1996) (same); United States v. Ono, 72 F.3d 101,
102-03 (9th Cir. 1995) (same).
These circuit courts have all held that a § 3582(c)(2) motion is not a civil
postconviction action, but rather a continuation of a criminal case. The courts based
their decisions on the fact that § 3582 “governs the imposition and subsequent
modification of a sentence of imprisonment, and it refers to the statutes and rules
governing the imposition of sentences.” Alvarez, 210 F.3d at 310 (internal quotations
and citation omitted). We agree with our sister circuits’ reasoning and adopt it as our
own.
In United States v. Mosavi, 138 F.3d 1365 (11th Cir. 1998), we addressed the
applicability of Rule 60(b) in the context of a criminal case. In Mosavi, the appellant
sought to set aside a criminal forfeiture imposed as part of his criminal sentence via
a Rule 60(b) motion. Id. at 1365. This Court stated, however, that the Federal Rule
of Civil Procedure “unambiguously” limited their application to civil cases. Id. at
1366. Consequently, we held that the appropriate vehicle for challenging the
forfeiture was Mosavi’s direct criminal appeal of his conviction and sentence and that
“Rule 60(b) simply does not provide for relief from judgment in a criminal case.” Id.
Because § 3582 is likewise criminal in nature, Fair cannot use Federal Rule of
Civil Procedure 60(b)(4) to attack any alleged deficiencies in the district court’s
underlying order denying Fair’s § 3582(c)(2) motion. Consequently, the district court
correctly denied Fair’s Rule 60(b)(4) motion.
AFFIRMED.