                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT  OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                            DECEMBER 14, 2010
                                No. 09-12912                    JOHN LEY
                            Non-Argument Calendar                CLERK
                          ________________________

           D.C. Docket Nos. 08-14411-CV-DLG, 00-14088-CR-DLG

JOHNNY EDWARD CARTER,


                                                               Plaintiff-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Defendant-Appellee.
                        __________________________

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

                              (December 14, 2010)

Before CARNES, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Johnny Edward Carter, a federal prisoner, appeals pro se the dismissal of his

second motion to vacate his conviction. 28 U.S.C. § 2255. The district court
dismissed Carter’s motion as untimely and granted Carter a certificate of

appealability. We vacate and remand for further proceedings.

      Carter was convicted of conspiracy to possess with intent to distribute over

five grams of cocaine base and sentenced as a career offender to 360 months of

imprisonment. 21 U.S.C. §§ 841(a)(1), 846. Carter moved to vacate or set aside

his conviction or sentence, 28 U.S.C. § 2255, which the district court dismissed as

untimely. This Court affirmed and agreed that Carter’s motion was “plainly barred

by §2255’s statute of limitations.” Carter v. United States, No. 04-12044 (11th

Cir. Aug. 16, 2004). Carter later moved to reduce his sentence, 18 U.S.C. §

3582(c), and that motion is pending in the district court.

      Carter moved a second time to vacate or set aside his conviction or

sentence. 28 U.S.C. § 2255. The government moved to dismiss the motion

because Carter had failed to obtain leave to file a second or successive motion. A

magistrate judge denied the motion to dismiss on the ground that Carter sought to

reduce his sentence, 18 U.S.C. § 3582(c), and recommended that the district court

deny the motion as untimely and, in the alternative, as lacking merit. Carter

objected to the recommendation and argued that he had moved to vacate his

sentence under section 2255 and his motion was timely. The district court adopted

the recommendation of the magistrate judge.


                                          2
      Although neither party challenges our jurisdiction, “we are obligated to

address jurisdictional questions sua sponte.” Thomas v. Blue Cross and Blue

Shield Ass’n, 594 F.3d 823, 828 (11th Cir. 2010) (quoting Frulla v. CRA

Holdings, Inc., 543 F.3d 1247, 1250 (11th Cir. 2008)). “An appellate court ‘must

satisfy itself not only of its own jurisdiction, but also of that of the lower courts in

a cause under review.’” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th

Cir. 2005) (quoting Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th

Cir. 1999)). “[T]his requirement involves the court’s competency to consider a

given type of case, [and] it cannot be waived or otherwise conferred upon the

court by the parties.” Id. (internal quotation marks omitted).

      The district court lacked jurisdiction to entertain Carter’s second motion to

vacate. Because Carter “is collaterally attacking his sentence as violating the

United States Constitution, the proper avenue of relief is [section] 2255.” United

States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). The district court dismissed

Carter’s first motion to vacate as untimely, that dismissal constituted a dismissal

with prejudice, and Carter has not sought permission from this Court to file a

successive motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); see Jordan v. Sec’y,

Dep’t of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007). “Without authorization, the




                                            3
district court lack[ed] jurisdiction to consider [Carter’s] second or successive

petition.” Holt, 417 F.3d at 1175.

      We VACATE the dismissal of Carter’s motion to vacate and REMAND for

the district court to dismiss the motion for a lack of jurisdiction.

      VACATED AND REMANDED.




                                           4
