United States v. Marlene Zuluaga

192 F. App'x 944

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 15, 2006
• Docket: 05-17169
• Status: Unpublished

Opinion

PER CURIAM:

Appellant Marlene Zuluaga (“Zuluaga”), proceeding pro se, appeals the district court’s order denying her Fed.R.Civ.P. 60(b) motion to alter and/or amend judgment. She argues that the Supreme Court amended the sentencing guidelines with its decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and thus the district court should give retroactive effect to the amendment and resentence her.

We review issues of subject-matter jurisdiction de novo. United States v. Moore, 443 F.3d 790, 793 (11th Cir.2006). The Federal Rules of Civil Procedure “govern the procedure in the United States district courts in all suits of a civil nature ...” Fed.R.Civ.P. 1. While Rule 60(b) provides for relief from a final judgment, see Fed.R.Civ.P. 60(b), it does not provide for relief from judgment in a criminal case and, therefore, cannot be used to challenge a sentence, United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir.1998) (addressing a challenge to a criminal forfeiture).

Because Rule 60(b) does not offer relief from a criminal judgment, Zuluaga is unable to collaterally attack her sentence through a Rule 60(b) motion. Accordingly, we conclude that the district court did not have subject-matter jurisdiction to grant her Rule 60(b) motion. To the extent that Zuluaga’s pro se motion could be construed as one for relief under 18 U.S.C. § 3582(c)(2) or 28 U.S.C. § 2255, the decision in Booker is not an appropriate ground for relief in either motion. Finally, we do not consider Zuluaga’s request to consider the Rule 60(b) motion as an independent action because she raised it for the first time in her reply brief. Accordingly, we affirm the district court’s order denying Zuluaga’s Rule 60(b) motion.

AFFIRMED.