                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             October 12, 2005
                               No. 05-10700
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 03-60213-CR-WPD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ERIC CLARKE,

                                                            Defendant-Appellant.


                         ________________________

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

                              (October 12, 2005)

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Erick Clarke, a federal prisoner who pled guilty to unlawfully attempting to
re-enter the United States without consent in violation of 8 U.S.C. § 1326(a),

appeals pro se the district court’s dismissal of his post-conviction motion to

dismiss his indictment based on lack of jurisdiction.1 Finding no error, we affirm.

       More than a year after Clarke was sentenced for the foregoing offense, he

moved to dismiss the underlying indictment on the grounds that it was

jurisdictionally defective and had been constructively amended. The district court,

finding that Clarke’s case was closed and that more than a year had passed since

sentencing, determined it lacked jurisdiction to decide the motion and therefore

dismissed it.2 On appeal, Clarke identifies no source of subject matter jurisdiction

that would have empowered the district court to reach the merits of his motion.

Clarke nevertheless contends that he is entitled to dismissal of the indictment

because: (1) the indictment should have contained an allegation of willfulness; (2)

Clarke was charged with and pleaded guilty to “attempted reentry,” but the written

plea agreement and the judgment of conviction describe his offense as one of

unlawful re-entry and do not use the term “attempt”; and (3) the attribution of this

“[un]indicted offense” to Clarke violates Blakely v. Washington, 542 U.S. 296, 124

S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, 543 U.S. ___,

       1
          While appellant’s first name is spelled “Eric” in various parts of the record, appellant
uses the spelling “Erick” in his brief.
       2
           Although the dismissal was without prejudice to refiling under 28 U.S.C. § 2255, the
district court noted–and it is uncontroverted on appeal–that such a filing would be time-barred.

                                                 2
125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

       A district court’s subject matter jurisdiction is subject to de novo review.

See United States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992) (per curiam).

Clarke essentially claims that his indictment was so defective as to fail to invoke

the district court’s jurisdiction or state an offense. Generally, a motion alleging a

defect in an indictment must be raised before trial, “but at any time while the case

is pending, the court may hear a claim that the indictment . . . fails to invoke the

court’s jurisdiction or to state an offense.” F ED. R. C RIM. P. 12(b)(3)(B) (emphasis

added). By the time Clarke moved to dismiss his indictment, he had already pled

guilty and been sentenced–and the period to appeal the conviction and/or sentence

had long since passed. See F ED. R. A PP. P. 4(b)(1).3 Thus, Clarke’s case was not

“pending” within the meaning of Rule 12(b)(3)(B) when he filed his motion to

dismiss, and the district court correctly refused to entertain the motion. See United

States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002) (per curiam) (holding that

district court properly denied Rule 12(b) motion where proceeding that led to

prisoner’s conviction was no longer pending); United States v. Wolff, 241 F.3d

1055, 1056-57 (8th Cir. 2001) (per curiam) (“After final judgment was entered and

Wolff did not file a direct appeal, the proceedings were no longer pending.”).


       3
         Indeed, this Court previously dismissed Clarke’s instant appeal sua sponte as untimely,
to extent the appeal challenged his conviction and sentence.

                                                3
Moreover, Clarke’s motion was effectively a collateral attack upon his sentence,

and he may not circumvent habeas requirements by presenting his challenge under

a different guise. Cf. Patton, 309 F.3d at 1094.

      Upon review of the record, consideration of the parties’ briefs, and for the

reasons stated above, we affirm the district court’s dismissal of Clarke’s post-

conviction motion to dismiss the indictment.

      AFFIRMED.




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