              Case: 13-10713    Date Filed: 12/04/2013   Page: 1 of 6


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10713
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:06-cr-20153-JEM-2


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ROBERTO MARIO VIVES,
a.k.a. Canoso,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (December 4, 2013)

Before HULL, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Roberto Mario Vives, a federal prisoner proceeding pro se, appeals the

dismissal of his “Petition for Modification and Reduction of Sentence” (the
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“petition”), which he filed pursuant to Federal Rule of Criminal Procedure 35; 18

U.S.C. §§ 3231, 3582(c)(2), 3742; and 28 U.S.C. § 1651. He also appeals the

denial of his motion for reconsideration of that dismissal. We dismiss in part and

affirm in part.

                                           I.

        On appeal, Vives argues the merits of his petition. The government

responds we lack jurisdiction over Vives’s appeal to the extent he is appealing

from the district judge’s order dismissing his petition, because his notice of appeal

was untimely filed.

        We review de novo whether an appeal should be dismissed as untimely. See

United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012). To be timely, a

defendant’s notice of appeal in a criminal case must be filed in the district court no

later than 14 days after the challenged order is entered. See Fed. R. App. P.

4(b)(1)(A). Unlike the civil appeal rules, the deadline in Federal Rule of Appellate

Procedure 4(b) for criminal defendants is not jurisdictional, because it is not based

on a federal statute. United States v. Lopez, 562 F.3d 1309, 1311-13 (11th Cir.

2009). We must apply Federal Rule of Appellate Procedure 4(b) time limits upon

objection by the government to a defendant’s untimely notice of appeal. Id. at

1314.




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      A notice of appeal filed by a pro se prisoner is deemed filed on the date the

prisoner delivers it to prison authorities for mailing or places it in the prison mail

system. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct.

2379, 2385, 101 L. Ed. 2d 245 (1988). Absent contrary evidence, we will assume

that a prisoner’s filing “was delivered to prison authorities the day he signed it.”

Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).

      We may not extend the time for filing an appeal, except as provided in

Federal Rule of Appellate Procedure 4. Fed. R. App. P. 26(b)(1). In criminal

actions, we customarily treat a late notice of appeal as a motion for an extension of

time and remand to the district court for a determination of excusable neglect or

good cause. Fed. R. App. P. 4(b); United States v. Ward, 696 F.2d 1315, 1317-18

(11th Cir. 1983). To qualify for this relief, the notice of appeal must be filed or

delivered to prison authorities for forwarding to the district court within the

additional 30 days during which an extension is permissible. Fed. R. App. P.

4(b)(4). Otherwise, the district judge lacks the authority to further extend the time

to appeal, even with a finding of excusable neglect or good cause. See Lopez, 562

F.3d at 1314.

      The timely filing of a motion for reconsideration in a criminal action tolls

the time for filing a notice of appeal; the time begins to run anew following

disposition of the motion. United States v. Vicaria, 963 F.2d 1412, 1413-14 (11th


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Cir. 1992). A motion for reconsideration in a criminal case must be filed within

the period of time allotted for filing a notice of appeal in order to extend the time

for filing the notice of appeal. See id.

      In this case, Vives’s notice of appeal was untimely filed regarding the

district judge’s November 6, 2012, order, dismissing his petition for lack of subject

matter jurisdiction. Vives had 14 days, or until November 20, 2012, to file a notice

of appeal for that order. See Fed. R. App. P. 4(b)(1)(A). Because Vives’s notice

of appeal is deemed filed on February 9, 2013, the day he signed the document, his

notice of appeal was untimely. See Washington, 243 F.3d at 1301. Upon a finding

of excusable neglect or good cause, the district judge could have extended the time

for Vives to file a notice of appeal for 30 days. See Fed. R. App. P. 4(b)(4). That

30-day extension period, however, ended on December 20, 2012. Even upon a

finding of excusable neglect or good cause, on February 9, 2013, the district judge

would not have been permitted to extend the time for filing a notice of appeal. See

Lopez, 562 F.3d at 1314.

      Although a timely motion for reconsideration can toll the time to appeal in

some circumstances, Vives’s motion for reconsideration was deemed filed on

December 12, 2012; thus, his motion could not toll the time he had to appeal,

because it was not filed within the 14-day period for appealing the district judge’s

November 6, 2012, order. See Vicaria, 963 F.2d at 1413-14; see also Washington,


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243 F.3d at 1301. Consequently, Vives’s notice of appeal is untimely for the

November 2012 dismissal of his petition. Because the government has not

forfeited its objection to the timeliness issue, we dismiss Vives’s appeal to the

extent he challenges that dismissal. See Lopez, 562 F.3d at 1314.

       The government addresses the merits of Vives’s motion for reconsideration

on appeal and has not objected to the timeliness of his notice of appeal regarding

the denial of that motion. See United States v. Frazier, 605 F.3d 1271, 1278 (11th

Cir. 2010) (concluding we had jurisdiction to review an appeal filed past the

deadline, because the government affirmatively forfeited its objection to the

timeliness issue). Thus, the government has forfeited its objection to the timeliness

issue as to denial of Vives’s motion for reconsideration.

                                               II.

       Vives argues denying his motion for reconsideration of the dismissal of his

petition was abuse of discretion by the district judge.1 We review the denial of a

motion for reconsideration for abuse of discretion. United States v. Simms, 385

F.3d 1347, 1356 (11th Cir. 2004). Federal Rule of Civil Procedure 60(b) applies

only in civil cases, and a motion under Rule 60(b) is an improper way to challenge

a criminal conviction or sentence. See United States v. Fair, 326 F.3d 1317, 1318

1
  Because Vives does not challenge the district judge’s denial of his motion for a court-ordered
investigation into alleged improprieties in his initial brief, the issue is abandoned. See United
States v. Woods, 684 F.3d 1045, 1064 n.23 (11th Cir. 2012) (deeming an issue abandoned where
the appellant failed to develop any argument on the issue in his opening brief).
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(11th Cir. 2003) (affirming district judge’s denial of a pro se defendant’s Federal

Rule of Civil Procedure 60(b) motion, because he could not use any provision of

the Federal Rules of Civil Procedure to attack any alleged deficiencies in the

district judge’s order denying his § 3582(c)(2) motion); United States v. Mosavi,

138 F.3d 1365, 1366 (11th Cir. 1998) (affirming the district judge’s denying

defendant’s Federal Rule of Civil Procedure 60(b) motion, because Rule 60(b)

does not provide relief from a judgment in a criminal case); see also Fed. R. Civ.

P. 1 (stating the Federal Rules of Civil Procedure “govern the procedure in all civil

actions in the United States district courts”). The Federal Rules of Criminal

Procedure do not “expressly authorize[ ]” a motion for reconsideration from a

criminal order. Vicaria, 963 F.2d at 1414-15.

      The district judge’s denying Vives’s motion for reconsideration of the

dismissal of his petition was not abuse of discretion. Vives’s motion for

reconsideration was filed under Federal Rule of Civil Procedure 60(b), which was

improper, because he sought relief in his criminal case, not a civil case. See

Mosavi, 138 F.3d at 1366. Because no statute or Federal Rule of Criminal

Procedure authorizes the filing of a motion for reconsideration in a criminal case,

we affirm the denial of Vives’s motion for reconsideration. See id.; Fair, 326 F.3d

at 1318.

      DISMISSED IN PART, AFFIRMED IN PART.


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