                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            NOV 14, 2008
                             No. 07-14599                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 98-14010-CR-KLR

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ROBERT CLARENCE POTTS, III,

                                                         Defendant-Appellant.


                       ________________________

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

                           (November 14, 2008)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Robert Clarence Potts, III, appeals the district court’s denial of his pro se

motion brought pursuant to Fed.R.Civ.P. 60(b). For the reasons set forth below,

we affirm.

                                           I.

      In 1998, a federal grand jury returned a superseding indictment, charging

Potts with: possession with intent to distribute crack cocaine, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 1); possession of unregistered

firearms, in violation of 26 U.S.C. §§ 5861(d) and 5871, and 18 U.S.C. § 2 (Count

2); use of a firearm in relation to a drug-trafficking crime, in violation of 18 U.S.C.

§§ 924(c) and 2 (Count 3); and being a felon in possession of firearms, in violation

of 18 U.S.C. §§ 922(g)(2) and 924(a)(2). After a jury trial, the court entered a

judgment of conviction against Potts on Counts 1, 2, and 4, imposing a life

sentence as to Count 1 and concurrent sentences of 120 months’ imprisonment as

to Counts 2 and 4. After a direct appeal and a remand from the Supreme Court in

light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), we affirmed Potts’s convictions and sentences in 2001.

      In 2007, Potts’s filed the instant Fed.R.Civ.P. 60(b)(3) motion, arguing that

“the Honorable Magistrate Judge and the Government Attorneys perpetrated fraud

upon the federal court by misinforming Petitioner at arraignment about the possible



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maximum penalty he faced on the Count One Drug Charge.” Specifically, Potts

argued that, despite being informed that he faced a maximum sentence of life

imprisonment, he was subject only to a statutory maximum sentence of 30 years’

imprisonment under 21 U.S.C. § 841(b)(1)(C) because no drug quantity was

charged in the indictment. As a result, he requested that the district court “reverse

the conviction and sentences in the instant case . . . .” The motion was filed in the

same court and under the same case number as the original criminal case.

      The district court summarily denied Potts’s Rule 60(b) motion without

explanation. This appeal followed.

                                           II.

      “This court typically reviews a district court’s ruling upon a Rule 60(b)

motion for abuse of discretion.” Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.

2001). However, we “review questions concerning a district court’s subject matter

jurisdiction de novo.” United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.

2008) (emphasis added), petition for cert. filed, (U.S. No. 08-137) (July 30, 2008).

      Rule 60(b) of the Federal Rules of Civil Procedure provides, inter alia, that

the district court “may relieve a party or its legal representative from a final

judgment, order, or proceeding” if there is “fraud (whether previously called

intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.”



                                            3
Fed.R.Civ.P. 60(b)(3). However, it is well-established that the Federal Rules of

Civil Procedure do not provide for relief from judgment in a criminal case.

See Fed.R.Civ.P. 1 (“These rules govern the procedure in all civil actions and

proceedings . . . .”) (emphasis added).

      In United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998), a

defendant brought a Rule 60(b) motion challenging criminal forfeiture orders

entered in his criminal case. Concluding that the “district court lacked the subject

matter jurisdiction necessary to provide relief under Rule 60(b),” we affirmed the

district court’s denial of the Rule 60(b) motion. Id. at 1365-66. We explained

“that the defendant cannot challenge the criminal forfeiture orders at issue under

the Federal Rules of Civil Procedure” because “[t]he judgment and order that the

defendant contests were entered, not in a civil case, but in a criminal case . . . .” Id.

at 1366. In other words, “Rule 60(b) simply does not provide for relief from

judgment in a criminal case, and as such the defendant cannot challenge the

criminal forfeitures at issue under Fed.R.Civ.P. 60(b).” Id.

                                           III.

      In this case, there is no dispute that Potts’s Rule 60(b) motion sought relief

from the judgment in his criminal case. In the motion, he argued that, due to the

indictment’s failure to allege drug quantity, he was misinformed regarding the



                                            4
applicable statutory penalties. In his prayer for relief, he specifically requested the

district court to “reverse his conviction and sentences in the instant case.” Further,

the motion was filed in the same court and under the same case number as the

original criminal case. Nor did the motion refer to or request the district court to

reconsider any previous ruling in a civil action. In sum, because Potts’s Rule 60(b)

motion sought relief from the judgment entered in his criminal case, the district

court lacked subject matter jurisdiction to grant Potts relief. Mosavi, 138 F.3d at

1365-66. Accordingly, we affirm.

      AFFIRMED.




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