           Case: 15-13480    Date Filed: 11/17/2016   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13480
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 2:08-cr-14052-KMM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

CHARLES ANTHONY GIOVINCO,

                                                          Defendant-Appellant.

                      ________________________

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

                            (November 17, 2016)

Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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       In 2009, Appellant Charles Giovinco, a pro se federal prisoner, was

sentenced to 235 months’ imprisonment for using the internet to entice a minor to

engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Giovinco did not

appeal his conviction or sentence. Nor did Giovinco file a 28 U.S.C. § 2255

motion to vacate his conviction and sentence.

       Five years later, in 2014, Giovinco filed a pro se a motion in his criminal

case seeking relief from the final criminal judgment “pursuant to Rule 60(b)” of

the Federal Rules of Civil Procedure. In his Rule 60(b) motion, Giovinco indicated

that he “may at some point choose to prosecute this issue pursuant to a motion

under § 2255,” but maintained that the current motion was “a properly filed

petition pursuant to Rule 60(b).” As to the merits, Giovinco argued that he was

actually innocent of the offense.

       The district court denied Giovinco’s Rule 60(b) motion. After review, we

affirm. 1

       Rule 60(b) provides that “the court may relieve a party . . . from a final

judgment, order, or proceeding” under certain circumstances. Fed. R. Civ. P.

60(b). Rule 60(b), however, applies only in civil cases, and a motion under that


       1
        We review a district court’s denial of relief under Rule 60(b) for abuse of discretion.
Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006). We review de novo whether a district
court had subject matter jurisdiction to consider a Rule 60(b) motion. Williams v. Chatman, 510
F.3d 1290, 1293 (11th Cir. 2007).


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rule is not a proper way to challenge a criminal conviction or sentence. See United

States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (holding a defendant

cannot challenge criminal forfeitures under Fed. R. Civ. P. 60(b)); see also Fed. R.

Civ. P. 1 (stating that the Federal Rules of Civil Procedure “govern the procedure

in all civil actions and proceedings in the United States district courts”).

      Federal courts have an obligation to look beyond the label of a motion filed

by a pro se inmate and determine whether the motion is, in effect, cognizable under

a different remedial statutory framework. United States v. Jordan, 915 F.2d 622,

624-25 (11th Cir. 1990). Before a district court recharacterizes a pro se motion as

an initial § 2255 motion, however, the district court must notify the movant of its

intention to do so, warn the movant that recharacterization means that any

subsequent § 2255 motion will be subject to the restrictions on second or

successive motions, and provide the movant an opportunity to withdraw the motion

or to amend it so that it contains all the § 2255 claims he believes he has. Castro v.

United States, 540 U.S. 375, 383 (2003).

      Here, Giovinco expressly stated that his motion was brought pursuant to

Rule 60(b) and not pursuant to § 2255. Consistent with Giovinco’s position, the

district court did not construe Giovinco’s Rule 60(b) motion as a § 2255 motion or

provide the required Castro warnings noted above. Given that Giovinco may not

use Rule 60(b), a rule of civil procedure, to challenge his criminal conviction and


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circumvent the requirements of § 2255, see Mosavi, 138 F.3d at 1366, the district

court did not err in denying Giovinco’s Rule 60(b) motion.

      AFFIRMED.




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