United States v. Ismael Rico

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 10, 2020
• Docket: 19-10812
• Status: Unpublished

Opinion

Case: 19-10812 Document: 00515338842 Page: 1 Date Filed: 03/10/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED No. 19-10812 March 10, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ISMAEL RICO,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:15-CR-152-4

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges. PER CURIAM: * Ismael Rico, federal prisoner # 49569-177, appeals the district court’s denial of his Federal Rule of Civil Procedure 60(b)(4) motion for relief from the 2016 judgment convicting him of, and sentencing him for, conspiracy to possess with the intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine. Among the grounds on which the district court denied Rico’s motion was that the Federal Rules of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-10812 Document: 00515338842 Page: 2 Date Filed: 03/10/2020

No. 19-10812

Civil Procedure do not apply in criminal proceedings. On appeal, Rico contends that his judgment is void because it imposed “punishment for criminal conduct” (i.e., Guidelines enhancements) that was not part of the “indictment charges” to which Rico pled guilty and because the sentencing court lacked subject matter jurisdiction. Rule 60 does not apply in criminal proceedings. See United States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999); FED. R. CIV. P. 1. Thus, the district court did not err in denying Rico’s Rule 60(b)(4) motion on this basis. Moreover, because Rico’s Rule 60(b)(4) motion sought to challenge his conviction and sentence on grounds that he could have raised in his prior 28 U.S.C. § 2255 motion, the motion is properly construed as an unauthorized successive Section 2255 motion, which the district court lacked jurisdiction to consider. See 28 U.S.C. § 2244(b)(3)(A); § 2255(h); Gonzalez v. Crosby, 545 U.S. 524, 531– 32 (2005); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). We can uphold “the district court’s judgment on any grounds supported by the record.” Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992). We therefore AFFIRM. Rico’s motion for release under Federal Rule of Appellate Procedure 9(a) is DENIED.