United States v. Garland Miller

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 21, 2018
• Docket: 18-30306
• Status: Unpublished

Opinion

Case: 18-30306 Document: 00514732126 Page: 1 Date Filed: 11/21/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-30306 FILED Summary Calendar November 21, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GARLAND D. MILLER,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:07-CR-50032-1

Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Garland D. Miller, former federal prisoner # 13658-035, appeals the district court’s denial of his Federal Rule of Criminal Procedure Rule 35(a) motion. Miller filed the motion to challenge the restitution order resulting from his 2008 convictions for tax evasion. Miller has also filed a separate motion requesting this court to overturn or correct his restitution order.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 18-30306 Document: 00514732126 Page: 2 Date Filed: 11/21/2018

No. 18-30306

The district court did not have the authority to consider Miller’s Rule 35(a) motion, because the motion was untimely and the time limit contained in Rule 35 is jurisdictional. See FED. R. CRIM. P. 35(a) (2008); United States v. Lopez, 26 F.3d 512, 518-21 (5th Cir. 1994). To the extent that Miller seeks relief pursuant to a petition for writ of error coram nobis, we and the district court have previously denied Miller relief based on the same grounds he raises in the instant proceeding. See United States v. Miller, 705 F. App’x 325, 325- 26 (5th Cir. 2017). To the extent that Miller seeks relief pursuant to Federal Rule of Civil Procedure 60(b), such a motion does not apply in criminal proceedings. See FED. R. CIV. P. 1 (“These rules govern the procedure in all civil actions . . . .”). Accordingly, the judgment of the district court is AFFIRMED. For the same reasons, Miller’s motion to overturn or correct his restitution order is DENIED.