     Case: 09-31192     Document: 00511217405          Page: 1    Date Filed: 08/27/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 27, 2010
                                     No. 09-31192
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

CHRISTOPHER MICHAEL BROWN,

                                                   Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 1:01-CR-10012-2


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Christopher Michael Brown, federal prisoner # 10980-035, was convicted
by a jury of various offenses relating to a drug distribution conspiracy. He was
sentenced to concurrent terms of life in prison on the conspiracy count and 40
years on distribution charges. In addition, the court imposed a $250,000 fine.
We affirmed his conviction on direct appeal, and Brown unsuccessfully sought
relief via a 28 U.S.C. § 2255 motion.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-31192       Document: 00511217405 Page: 2      Date Filed: 08/27/2010
                                    No. 09-31192

          Brown then filed a motion seeking modification of his fine, arguing that
the district court erred by imposing the fine without considering certain factors,
such as his ability to pay, the effect on his dependents, and the length of the
sentence. The court dismissed the motion, and Brown now appeals.
          Brown’s reliance on various provisions of Rule 60 of the Federal Rules of
Civil Procedure is unavailing. To the extent that he challenges the underlying
criminal judgment, Rule 60 cannot provide relief because it applies only to civil
proceedings. To the extent that Brown’s motion may be deemed as challenging
the result of his prior 28 U.S.C. § 2255 proceeding, it is successive. See United
States v. Rich, 141 F.3d 550, 551-53 (5th Cir. 1998). Brown has not obtained
authorization to file such a motion, which we would deny because his claims do
not satisfy the standard for a successive motion. 28 U.S.C. § 2255(h). Even if
the claims were not successive, Brown could not raise them via 28 U.S.C. § 2255
or 28 U.S.C. § 2241, because they could have been raised on direct appeal and
because a fine does not satisfy the “in custody” requirement for such collateral
relief. See United States v. Segler, 37 F.3d 1131, 1135-37 (5th Cir. 1994).
          The motion likewise does not qualify as a writ of coram nobis, see United
States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998), or a writ of audita querela, see
United States v. Miller, 599 F.3d 484, 489 (5th Cir. 2010). Further, Brown’s
motion does not fall under the fine and sentence modification provisions of 18
U.S.C. § 3573 or Rule 35(b) of the Federal Rules of Criminal Procedure, which,
by their plain language, provide relief only on petition or motion by the
Government. See United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994)
(“[O]nly the Government can file a motion for reduction of a defendant’s
sentence” under Rule 35(b).). Rule 52(b), cited by Brown in his motion, merely
sets forth the plain error standard; it provides no procedural mechanism for
relief.
          For the foregoing reasons, we AFFIRM the judgment of the district court
dismissing Brown’s motion.

                                          2
