                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        January 2, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                Nos. 06-4153 and 06-4154
          v.                                             (D. of Utah)
 DEA N R AM IREZ,                                  (D.C. No. 03-CR-69-TC)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      Dean Ramirez, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion for relief from a criminal judgment under Rule 60(b)

of the Federal Rules of Civil Procedure. Because Rule 60(b) is inapplicable to

criminal cases, we AFFIRM the decision of the district court.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                   I. Background

      On M ay 1 and M ay 15 of 2003, Ramirez was indicted by a federal grand

jury for his involvement in two drug trafficking cases. The cases were

consolidated for trial and, after an 8-day trial in M arch 2004, Ramirez was

convicted on four counts: conspiracy involving 500 grams or more of

methamphetamine; possession of a firearm by a restricted person; unlawful

transport of firearms; and use of a comm unication facility in a drug trafficking

crime. Ramirez was sentenced to 30 years of imprisonment, followed by five

years of supervised release. He subsequently appealed his conviction and

sentence to this Court, United States v. Ramirez, Nos. 05-4099 and 05-4103. Oral

argument was held on M arch 7, 2006 but a final decision has not yet been

rendered.

      On M arch 10, 2006, Ramirez filed a Rule 60(b) motion under the federal

civil rules in district court seeking relief from his criminal judgment on the basis

of alleged sentencing errors. 1 Before ruling on the m otion, the district court

asked Ramirez whether he would rather have his claim construed as a petition for

a writ of habeas corpus under 28 U.S.C. § 2255 rather than a Rule 60(b) motion.




      1
         See Fed. R. Civ. P. 60, “Relief from Judgment or Order.” A Rule 60(b)
motion seeks relief from a final judgment on the basis of mistake, inadvertence,
excusable neglect, newly discovered evidence, fraud, or “any other reason
justifying relief from the operation of a judgment.”

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Ramirez replied that he would not, and subsequently filed a memorandum in

support of his Rule 60(b) motion.

      On M ay 31, 2006, the district court issued an order denying Ramirez’s

motion on the basis that Rule 60(b) motions are limited in scope to civil actions.

The district court concluded Rule 60(b) “is inapplicable to criminal cases and, as

a procedural matter, does not provide M r. Ramirez an avenue to pursue the relief

he now requests.” District Court Order at 1. Thus, the court found it lacked

jurisdiction to address the merits of Ramirez’s claim and denied the motion.

                                    II. Analysis

      W e agree with the district court that Rule 60(b) provides no basis for the

requested relief. First, Rule 60(b) does not apply to a criminal proceeding.

United States v. M osavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (per curiam)

(“Rule 60(b) simply does not provide for relief from judgment in a criminal

case.”); United States v. O'Keefe, 169 F.3d 281, 289 (5th Cir. 1999) (same)).

      M oreover, given that an appeal of Ramirez’s conviction and sentence is

currently pending in this Court, the district court has already been divested of

jurisdiction over related issues and Rule 60 cannot be used to circumvent a failure

of jurisdiction. United States v. Prows, 448 F.3d 1223, 1228 (10th Cir. 2006).

See also Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)

(“The filing of a notice of appeal is an event of jurisdictional significance— it

confers jurisdiction on the court of appeals and divests the district court of its

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control over those aspects of the case involved in the appeal.”). Finally, Rule

60(b) is not an independent source of jurisdiction in a criminal case.

      In short, Rule 60(b) of the Federal Rules of Civil Procedure does not confer

jurisdiction on the district court when the existence of a prior pending appeal has

transferred jurisdiction to the circuit court.

                                   III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s denial of

Ramirez’s Rule 60(b) motion and DISM ISS this appeal.

                                  Entered for the Court,

                                  Timothy M . Tymkovich
                                  Circuit Judge




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