US v. Mark Grape, No. 10-7612 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7612 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARK EDWARD GRAPES, Defendant Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:05-cr-00011-JPB-JSK-2) Submitted: January 13, 2011 Decided: January 21, 2011 Before MOTZ, KING, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Mark Edward Grapes, Appellant Pro Se. Thomas Oliver Mucklow, Assistant United States Attorney, Martinsburg, West Virginia; Michael Stein, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Mark distribution Edward of Grapes pled methamphetamine, in guilty to violation one of count 21 of U.S.C.A. § 841(b)(1)(C) (West 2006 & Supp. 2010), and one count of using and carrying trafficking (2006). a firearm crime, in during violation and of in 18 relation U.S.C. to a drug § 924(c)(1)(A) The district court sentenced Grapes in October 2006 to eighty-seven months imprisonment on the methamphetamine count and a consecutive term of sixty months imprisonment on the firearm count, for a total term of 147 months imprisonment. In October 2010, Grapes filed a motion, styled as a Fed. R. Civ. P. 60(b) motion, amend the in which judgment imprisonment terms of run he requested conviction concurrently that and to the order one district that court the another. two The district court denied the motion, and Grapes appeals. The Federal Rules of Civil Procedure do not provide a vehicle by which Grapes may challenge his criminal judgment. See United States v. O Keefe, 169 F.3d 281, 289 (5th Cir. 1999) (stating entered that in his a criminal criminal defendant case using cannot Fed. R. challenge Civ. P. orders 60(b)); United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (per curiam) (holding that a defendant cannot challenge criminal forfeiture orders under the Federal Rules of Civil Procedure). Nor could Grapes have properly sought reconsideration under the 2 Federal Rules of Criminal Procedure. See United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir.), cert. denied, 130 S. Ct. 3530 (2010) (holding reconsideration that within Fed. fourteen R. Crim. days P. 35 only authorizes to correct arithmetical, technical, or other clear error). We therefore affirm the district court s order. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3

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