United States v. Arne Soreide

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 7, 2019
• Docket: 19-11287
• Status: Unpublished

Opinion

Case: 19-11287 Date Filed: 11/07/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11287 Non-Argument Calendar ________________________

D.C. Docket No. 0:03-cr-60235-JIC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARNE SOREIDE,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(November 7, 2019)

Before MARTIN, NEWSOM, and EDMONDSON, Circuit Judges. Case: 19-11287 Date Filed: 11/07/2019 Page: 2 of 5

PER CURIAM:

Arne Soreide, proceeding pro se, appeals the district court’s denial of

Soreide’s post-conviction motions under Fed. R. Crim. P. 12(b), and for

reconsideration. No reversible error has been shown; we affirm.

In 2004, Soreide was convicted of conspiracy to commit mail and wire

fraud, mail and wire fraud, money laundering, engaging in prohibited monetary

transactions, and filing fraudulent tax returns. We affirmed Soreide’s convictions

on direct appeal but vacated his sentences and remanded for resentencing in the

light of United States v. Booker, 543 U.S. 220 (2005). United States v. Soreide,

177 F. App’x 31 (11th Cir. 2006). On remand, the district court imposed the same

sentence and entered an amended judgment on 5 October 2006. Soreide filed no

direct appeal from the amended judgment.

In 2007, Soreide filed pro se a motion to vacate his sentences under 28

U.S.C. § 2255. The district court denied the motion on the merits; we denied

Soreide a certificate of appealability. In 2016, Soreide filed a second section 2255

motion. The district court determined that the motion constituted an unauthorized

second or successive section 2255 motion and, thus, dismissed it for lack of

jurisdiction.

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In March 2019, Soreide filed the pro se motion at issue in this appeal, which

is titled “Motion Pursuant to Fed. R. Crim. P. 12(a)-(b).” In his motion, Soreide

seeks to reverse his convictions and to vacate his sentences. Briefly stated, Soreide

contends that the district court lacked jurisdiction over Soreide’s criminal trial

because Soreide never received a copy of the indictment and never had the

indictment read or explained to him. Soreide also challenges the district court’s

jury instructions, alleges juror misconduct, and challenges his sentences as

procedurally and substantively unreasonable.

The district court denied Soreide’s motion for lack of jurisdiction,

determining that Soreide’s case was no longer pending, as required by Rule

12(b)(2). The district court later denied Soreide’s motion for reconsideration.

We review de novo questions about jurisdiction. United States v. Lopez,

562 F.3d 1309, 1311 (11th Cir. 2009). We review the district court’s denial of a

motion for reconsideration under an abuse-of-discretion standard. United States v.

Simms, 385 F.3d 1347, 1356 (11th Cir. 2004). We construe liberally pro se

pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

The district court committed no error in denying Soreide’s motion for lack

of jurisdiction. Generally speaking, Rule 12 governs the filing of pretrial motions.

A motion challenging the district court’s jurisdiction under Rule 12(b)(2),

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however, “may be made at any time while the case is pending.” Fed. R. Crim. P.

12(b)(2). Soreide filed his Rule 12 motion more than twelve years after the

mandate issued in his direct appeal of his convictions and after his amended

judgment had become final. That Soreide’s criminal case was no longer “pending”

when he filed his Rule 12 motion is clear. Cf. United States v. Elso, 571 F.3d

1163, 1166 (11th Cir. 2009) (a defendant’s criminal case ends when the mandate

issues on direct appeal or when the Supreme Court denies a petition for certiorari).

Accordingly, the district court lacked jurisdiction to consider Soreide’s Rule

12(b)(2) motion. See id.

Furthermore, we note that Soreide’s motion -- in which he seeks to challenge

collaterally his convictions and sentences -- may be more properly construed as a

section 2255 motion to vacate. See Gooden v. United States, 627 F.3d 846, 847

(11th Cir. 2010) (“Federal courts have long recognized that they have an obligation

to look behind the label of a motion filed by a pro se inmate and determine whether

the motion is, in effect, cognizable under a different remedial statutory

framework.”); Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005)

(“Typically, collateral attacks on the validity of a federal sentence must be brought

under § 2255.”). Because Soreide has already filed a section 2255 motion and has

received no authorization to file a second or successive section 2255 motion, the

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district court was without jurisdiction to consider the motion. See 28 U.S.C. §§

2244(b)(3)(A), 2255(h); Farris v. United States, 333 F.3d 1211, 1216 (11th Cir.

2003) (“Without authorization, the district court lacks jurisdiction to consider a

second or successive [§ 2255 motion].”).

The district court denied properly Soreide’s purported Rule 12 motion for

lack of jurisdiction and abused no discretion in denying Soreide’s motion for

reconsideration.

AFFIRMED.