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    United States v. Ramon Blanco, 11th Cir. (2015)

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    Ramon Blanco appealed the district court's denial of his motion to vacate its prior order denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Blanco had been convicted of drug and firearm offenses and sentenced to 295 months in prison. He later filed a § 3582(c)(2) motion based on a sentencing guideline amendment, which the district court denied. Blanco then filed a motion to vacate that denial, which the district court construed as a motion for reconsideration and denied as untimely. The appellate court affirmed, finding that the district court lacked authority to consider Blanco's motion to vacate, as Federal Rule of Civil Procedure 60(b) does

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    United States v. Ramon Blanco, 11th Cir. (2015)

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    Ramon Blanco appealed the district court's denial of his motion to vacate its prior order denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Blanco had been convicted of drug and firearm offenses and sentenced to 295 months in prison. He later filed a § 3582(c)(2) motion based on a sentencing guideline amendment, which the district court denied. Blanco then filed a motion to vacate that denial, which the district court construed as a motion for reconsideration and denied as untimely. The appellate court affirmed, finding that the district court lacked authority to consider Blanco's motion to vacate, as Federal Rule of Civil Procedure 60(b) does

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    Filed: 2015-11-24 Precedential Status: Non-Precedential Docket: 15-11767

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    Ramon Blanco appealed the district court's denial of his motion to vacate its prior order denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Blanco had been convicted of drug and firearm offenses and sentenced to 295 months in prison. He later filed a § 3582(c)(2) motion based on a sentencing guideline amendment, which the district court denied. Blanco then filed a motion to vacate that denial, which the district court construed as a motion for reconsideration and denied as untimely. The appellate court affirmed, finding that the district court lacked authority to consider Blanco's motion to vacate, as Federal Rule of Civil Procedure 60(b) does

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    23 views6 pages

    United States v. Ramon Blanco, 11th Cir. (2015)

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    Ramon Blanco appealed the district court's denial of his motion to vacate its prior order denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Blanco had been convicted of drug and firearm offenses and sentenced to 295 months in prison. He later filed a § 3582(c)(2) motion based on a sentencing guideline amendment, which the district court denied. Blanco then filed a motion to vacate that denial, which the district court construed as a motion for reconsideration and denied as untimely. The appellate court affirmed, finding that the district court lacked authority to consider Blanco's motion to vacate, as Federal Rule of Civil Procedure 60(b) does

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    of 6

    Case: 15-11767

    Date Filed: 11/24/2015

    Page: 1 of 6

    [DO NOT PUBLISH]

    IN THE UNITED STATES COURT OF APPEALS


    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-11767
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:07-cr-20756-WPD-4

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    versus
    RAMON BLANCO,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (November 24, 2015)
    Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Ramon Blanco appeals the district courts denial of his motion to vacate the

    Case: 15-11767

    Date Filed: 11/24/2015

    Page: 2 of 6

    courts prior order denying his 18 U.S.C. 3582(c)(2) motion to reduce his
    sentence.
    In 2008, a jury found Blanco guilty of conspiracy to possess with intent to
    distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
    841(a)(1), (b)(1)(A), 846; attempt to possess with intent to distribute five
    kilograms or more of cocaine, in violation of 18 U.S.C. 2 and 21 U.S.C.
    841(a)(1), (b)(1)(A), 846; conspiracy to obstruct commerce by means of
    robbery, in violation of 18 U.S.C. 1951(a); attempt to obstruct commerce by
    means of robbery, in violation of 18 U.S.C. 2, 1951(a); conspiracy to use and
    carry a firearm during and in relation to a crime of violence and a drug trafficking
    crime, and to possess a firearm in furtherance of such crimes, in violation of 18
    U.S.C. 924(o); and carrying a firearm during and in relation to a crime of
    violence and a drug trafficking crime, and possessing a firearm in furtherance of
    such crimes, in violation of 18 U.S.C. 924(c). The district court sentenced
    Blanco to a total of 295 months imprisonment.
    On November 10, 2014, Blanco moved to reduce his sentence under 18
    U.S.C. 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines, which
    lowered the base offense levels for most drug offenses. The district court denied
    the motion on November 13, 2014, stating that, while the amendment had lowered
    Blancos advisory guideline range, a sentence reduction was not warranted under
    2

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    Page: 3 of 6

    the 18 U.S.C. 3553(a) factors. On January 14, 2015, Blanco filed a motion
    requesting redress of the order denying his 3582(c)(2) motion. The district
    court denied Blancos motion, which it construed as a motion for reconsideration.
    On April 1, 2015, Blanco filed the pro se motion giving rise to the current
    appeal. Blanco styled the motion as a Motion Seeking the Court to Vacate a Void
    Judgment in the Criminal Proceeding Brought Under 18 USC 3582(c)(2) Based
    on a Exacerbation of the Criminal History and a Fallacy by the Government to
    Deny Relief, in which he move[d] the court to vacate the judgment entered on
    November 13, 2014 denying his 3582(c)(2) motion. The district court liberally
    construed the motion as either a Motion for Reconsideration under Federal Rules
    of Criminal Procedure 35(a) or a Motion to Vacate under Federal Rules of Civil
    Procedure 60(b). The court then denied the motion, stating that a motion for
    reconsideration was untimely and not properly before the court, and that Rule
    60(b) of the Federal Rules of Civil Procedure was inapplicable to this criminal
    proceeding. This appeal followed. On appeal, Blanco argues that the district court
    abused its discretion in denying his motion to vacate.
    We review de novo a district courts legal conclusions regarding the scope of
    its authority under 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326
    (11th Cir. 2008).

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    The analysis in this case turns on whether Blancos April 1 motion is


    construed as a Motion for Reconsideration under the Federal Rules of Criminal
    Procedure or a Motion to Vacate under the Federal Rules of Civil Procedure. But
    the result is the same either way. Neither of these procedural devices offers relief.
    The authority of a district court to modify an imprisonment sentence is
    narrowly limited by statute. United States v. Phillips, 597 F.3d 1190, 1194-95
    (11th Cir. 2010). A district court may only modify a term of imprisonment when
    one of three conditions are met: (1) the Director of the Bureau of Prisons has filed
    a motion to reduce sentence and other conditions are met; (2) another statute or
    Federal Rule of Criminal Procedure 35 expressly permits a sentence modification;
    or (3) the defendant has been sentenced to a term of imprisonment based on a
    sentencing range that has subsequently been lowered by the Sentencing
    Commission. 18 U.S.C. 3582(c). This case concerns only the second of those
    conditions. Federal Rule of Criminal Procedure 35(a) provides that, within 14 days
    after sentencing, a district court may correct a sentence that resulted from
    arithmetical, technical, or other clear error. Fed. R. Crim. P. 35(a). In Phillips,
    we held that a 3582(c)(2) proceeding wherein a sentence is modified is a
    sentencing for the purposes of Rule 35(a). 597 F.3d at 1197-98. In United States
    v. Anderson, 772 F.3d 662 (11th Cir. 2014), we held that the reasoning in Phillips
    also extends to cases in which a district court denies a defendants 3582(c)(2)
    4

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    Page: 5 of 6

    motion on the merits after considering the 3553(a) factors. Id. 667. In such a
    case, the district courts authority to consider a defendants successive motion is
    likewise limited in this circumstance to Rule 35s fourteen-day time limitation. Id.
    Federal Rule of Civil Procedure 60(b) provides that the court may relieve a
    party or its legal representative from a final judgment, order, or proceeding for a
    number of reasons. That Rule, however, does not provide for relief from a
    judgment in a criminal case. United States v. Mosavi, 138 F.3d 1365, 1366 (11th
    Cir. 1998). Thus, we have held that Rule 60(b)(4), providing for relief from a
    judgment on the ground that the judgment is void, is not available to a defendant
    challenging his sentence under 3582(c)(2), because a 3582(c)(2) motion is a
    continuation of a criminal case and not a civil post-conviction action. United
    States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003).
    Here, the district court properly concluded that it lacked authority to
    consider Blancos April 1 motion to vacate its prior order denying his 3582(c)(2)
    motion. To the extent Blanco sought to vacate or void the order denying his
    3582(c)(2) motion pursuant to Federal Rule of Civil Procedure 60(b), Rule 60(b)
    does not provide for relief from denial of a 3582(c)(2) motion. See Fair, 326
    F.3d at 1318; Mosavi, 138 F.3d at 1366. To the extent Blancos April 1 motion
    should be considered a motion to reconsider, his motion was subject to Federal
    Rule of Criminal Procedure 35(a)s 14-day time limitation, due to the district
    5

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    Page: 6 of 6

    courts denial of his 3582(c)(2) motion on the merits, and was untimely. See
    Anderson, 772 F.3d at 666-67; Fed. R. Crim. P. 35(a).
    AFFIRMED.

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