USA v. Greg Rivera, No. 12-14094 (11th Cir. 2013)
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Case: 12-14094 Date Filed: 08/07/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-14094 Non-Argument Calendar ________________________ D.C. Docket No. 1:95-cr-00913-DLG-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GREG RIVERA, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (August 7, 2013) Before TJOFLAT, WILSON and ANDERSON, Circuit Judges. PER CURIAM: Case: 12-14094 Date Filed: 08/07/2013 Page: 2 of 3 In 1996, Greg Rivera having pled guilty to conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, the District Court sentenced him as a career offender to prison for a term of 262 months. In 1998, the District Court denied Rivera s 28 U.S.C. § 2255 motion to vacate his sentence on the ground that he lacked career offender status at sentencing.1 On August 29, 2011, Rivera moved the District Court pursuant to Federal Rule of Civil Procedure 60(b) for Appropriate Relief, contending again that he should not have been sentenced as a career offender. The District Court denied his motion and his subsequent motion for reconsideration. He now appeals both rulings. We are obligated to examine our subject matter jurisdiction sua sponte. Boone v. Sec y, Dept. of Corrs., 377 F.3d 1315, 1316 (11th Cir. 2004) (per curiam). We review de novo whether the District Court properly exercised jurisdiction over Rivera s motion. United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002). The District Court lacked jurisdiction if Rivera s motion constituted a second or successive § 2255 motion and this court had not authorized Rivera to file it. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam). Rivera s Rule 60(b) motion is a successive § 2255 motion. We did not grant Rivera authorization to file it. See 28 U.S.C. § 2244(b)(3)(A). Since the District 1 Rivera s attempt to appeal the ruling failed because he was denied a certificate of appealability. 2 Case: 12-14094 Date Filed: 08/07/2013 Page: 3 of 3 Court lacked jurisdiction to entertain it, we are powerless to consider its merits. See Williams, 510 F.3d at 1294-95; Boone, 377 F.3d at 1316. Accordingly, we vacate the District Court s denial of Rivera s Rule 60(b) motion and motion for reconsideration, and remand the case with the instruction that the District Court dismiss Rivera s motion as an unauthorized successive § 2255 motion. VACATED and REMANDED, with instruction. 3
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