United States v. Jeffrey Spivack

Opinion

USCA11 Case: 23-13133 Document: 13-1 Date Filed: 11/09/2023 Page: 1 of 2

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-13133 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JEFFREY SPIVACK,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:21-cr-80016-KAM-1 ____________________ USCA11 Case: 23-13133 Document: 13-1 Date Filed: 11/09/2023 Page: 2 of 2

2 Opinion of the Court 23-13133

Before JORDAN, JILL PRYOR, and NEWSOM, Circuit Judges. PER CURIAM: This appeal is DISMISSED, sua sponte, for lack of jurisdic- tion. Jeffrey Spivack appeals from the district court’s September 7, 2023, order construing his motion to dismiss as a 28 U.S.C. § 2255 motion to vacate sentence. That order is not final and appealable, however, because it did not end the litigation on the merits in the district court. See 28 U.S.C. § 1291; Acheron Cap., Ltd. v. Mukamal, 22 F.4th 979, 986 (11th Cir. 2022) (stating that a final order ends the litigation on the merits and leaves nothing for the court to do but execute its judgment). The district court has not ruled on the re- characterized § 2255 motion or entered a judgment in the § 2255 proceedings. Additionally, the district court’s September 7, 2023, order is not effectively unreviewable on appeal from a final order resolving the case on the merits. Plaintiff A v. Schair, 744 F.3d 1247, 1252-53 (11th Cir. 2014) (explaining that a ruling that does not conclude the litigation may be appealed under the collateral order doctrine if it, inter alia, is “effectively unreviewable on appeal from a final judg- ment”). No petition for rehearing may be filed unless it complies with the timing and other requirements of 11th Cir. R. 40-3 and all other applicable rules.