              Case: 14-11323    Date Filed: 08/11/2014    Page: 1 of 4


                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-11323
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 8:89-cr-00004-EAK-2

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

JEFFREY EUGENE LEE,
a.k.a. Jed,

                                                              Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (August 11, 2014)

Before HULL, MARCUS, and MARTIN, Circuit Judges.

BY THE COURT:

      Jeffrey Eugene Lee is a federal prisoner serving a life sentence after being

convicted of one count of conspiracy to possess with intent to distribute cocaine
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base and one count of distribution of cocaine base under 21 U.S.C. § 841(a)(1) and

§ 846. Proceeding pro se, he filed a “Motion to Close Escrow” in which he

claimed his posting of a promissory note discharged his criminal judgment and

required the district court to release him. The district court denied his motion and

Lee filed this appeal.

       In response, the government moved for summary affirmance. Summary

disposition is appropriate where “the position of one of the parties is clearly right

as a matter of law so that there can be no substantial question as to the outcome of

the case, or where, as is more frequently the case, the appeal is frivolous.”

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).1

       Summary affirmance is appropriate in Lee’s case because the position of the

government is clearly right as a matter of law that there can be no substantial

question as to the outcome of the case. There is no statutory or legal authority for

the district court to accept payment in lieu of a life sentence. A district court’s

authority to modify a term of imprisonment is “narrowly limited by statute.”

United States v. Phillips, 597 F.3d 1190, 1194–95 (11th Cir. 2010). Under 18

U.S.C. § 3582(c), a district court may modify a sentence only if (1) the Bureau of

Prisons files a motion and certain other conditions are met; (2) a modification is


1
 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at
1209.

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expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) the

defendant was sentenced based on a guidelines range that was later lowered by the

Sentencing Commission and other requirements are met. Id. None of these

circumstances is present in Lee’s case, and as a result the district court has no

authority to release him.

      Because Lee’s motion was filed in his criminal case and seeks a

modification of his criminal sentence, the Federal Rules of Civil Procedure and

civil statutes on which he attempts to rely do not apply. See Fed. R. Civ. P. 1.

Any argument to the contrary is without merit. See United States v. Mosavi, 138

F.3d 1365, 1365–66 (11th Cir. 1998) (affirming after “[f]inding that the district

court lacked the subject matter jurisdiction necessary to provide Rule 60(b) relief”

because a defendant could not challenge a criminal forfeiture order using the

Federal Rules of Civil Procedure).

      To the extent that Lee relies in the alternative on Federal Rule of Criminal

Procedure 46, this argument is also frivolous. Rule 46 covers a person’s release

pretrial, during trial, pending sentence or appeal, and pending hearing on a

violation of probation or supervised release. Fed. R. Crim. P. 46(a)–(d). As a

result, it does not apply to Lee’s circumstances.

      We note that even if the district court had construed his motion for release

from custody as a 28 U.S.C. § 2255 motion for habeas relief, denial would have


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been appropriate. This is because Lee would not be entitled to habeas relief based

on the submission of a promissory note for the reasons explained above.

      All of Lee’s remaining contentions on appeal depend on the district court

having authority to discharge his criminal judgment after submission of a

promissory note. As a result, they are also frivolous.

      Because there is no substantial question about the outcome of Lee’s case, the

government’s motion for summary affirmance is GRANTED. The judgment of the

district court is AFFIRMED and the government’s motion to stay the briefing

schedule is DENIED as moot.




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