    14-1235
    United States v. Vale


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    8th day of December, two thousand fourteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                RALPH K. WINTER,
                ROBERT D. SACK,
                      Circuit Judges.
    __________________________________________

    UNITED STATES OF AMERICA,
                    Appellee,

                       v.                                               14-1235

    CHRISTIAN BROS. CONTRACTING CORP., A
    CORPORATION,

                             Defendant,

    JASON VALE,

                      Defendant-Appellant.
    __________________________________________

    FOR DEFENDANT-APPELLANT:                     Jason Vale, pro se, Bellerose Manor, NY
FOR APPELLEE:                                  Charles S. Kleinberg and Emily Berger, Assistant
                                               United States Attorneys, for Loretta E. Lynch,
                                               United States Attorney for the Eastern District of
                                               New York, Brooklyn, NY


       Appeal from an order of the United States District Court for the Eastern District of New

York (Gleeson, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Appellant Jason Vale, proceeding pro se, appeals from a district court’s denial of his

motion under Rule 60(b) of the Federal Rules of Civil Procedure challenging his underlying

conviction and sentence. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

       We review the denial of a Rule 60(b) motion for abuse of discretion. Harris v. United

States, 367 F.3d 74, 79 (2d Cir. 2004). Here, the district court did not abuse its discretion in

denying Vale’s motion.

       Contrary to Vale’s argument, Rule 60(b) is not available to directly challenge the

integrity of an underlying criminal conviction or sentence. When faced with a Rule 60(b) motion

making such a challenge, the district court may either treat it as a successive habeas petition or

deny it as beyond the scope of the rule. Harris, 367 F.3d at 82. The district court thus did not

abuse its discretion in denying Vale’s motion as beyond the scope of Rule 60(b). Furthermore,

any arguable error by the district court in failing to transfer the motion as a successive habeas

petition was harmless, since Vale was not in custody as required by 28 U.S.C. § 2255(a) and

Alleyne v. United States, 133 S. Ct. 2151 (2013), has not been made retroactive to cases on

collateral review. See United States v. Redd, 735 F.3d 88, 92 (2d Cir. 2013) (per curiam).

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       We have considered Vale’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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