     Case: 12-10738       Document: 00512118580         Page: 1     Date Filed: 01/18/2013




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

                                                                            FILED
                                                                         January 18, 2013
                                     No. 12-10738
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSHUA LAMAR CARRINGTON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:03-CR-90-1


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Joshua Lamar Carrington pleaded guilty to being a felon in possession of
a firearm and received a sentence under the Armed Career Criminal Act (ACCA)
of 235 months in prison, to be followed by a five-year term of supervised release;
he voluntarily dismissed his appeal in 2004. In 2012, Carrington filed a motion
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, asserting that his
ACCA sentence was invalid because two of his prior convictions for burglary of
a habitation were “related cases” under U.S.S.G. § 4A1.2 and that counsel

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10738     Document: 00512118580      Page: 2    Date Filed: 01/18/2013

                                  No. 12-10738

rendered ineffective assistance by failing to object to the guidelines calculations.
The district court denied Carrington’s motion, determining that a Rule 60(b)
motion was not proper in criminal proceedings and noting that Carrington’s
allegations were without merit. The court acknowledged that it could have
construed Carrington’s motion as an initial 28 U.S.C. § 2255 motion, but it
declined to do so because it determined that such a motion would be untimely.
      On appeal, Carrington argues that the district court erred by not
construing his motion as a § 2255 motion. He maintains that he could not have
discovered the factual predicate of his claims before August 2011 and that he did
not have access to the Sentencing Guidelines until he was released from state
custody to a federal prison. Additionally, Carrington asserts that he is entitled
to relief on the merits of his allegations. After reviewing the record and
Carrington’s arguments, we conclude that Carrington has failed to show that the
district court abused its discretion in denying the Rule 60(b) motion. See Seven
Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).           Neither has
Carrington established any error in the district court’s decision declining to
consider the Rule 60(b) motion as an initial 28 U.S.C. § 2255 motion.
      AFFIRMED.




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