            Case: 11-15634   Date Filed: 09/26/2012   Page: 1 of 8




                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 11-15634
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 2:06-cv-01041-RDP



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

LAND,
129 Persimmon Street, Birmingham,
Alabama and all Buildings and
Appurtenances thereon, et al.,

                                                                     Defendants,

DONEL HATCHER, et al.,

                                                                      Claimants,

ODESSA LOWE,

                                                           Claimant-Appellant.
              Case: 11-15634    Date Filed: 09/26/2012   Page: 2 of 8

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                               (September 26, 2012)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      Odessa Lowe appeals the district court’s denial of motions she filed in

relation to a civil consent judgment entered against her in 2009. After review, we

affirm.

                               I. BACKGROUND

A. Civil Forfeiture Complaint

      On May 31, 2006, the United States filed a complaint in rem for civil

forfeiture of four parcels of real property, numerous firearms, numerous vehicles,

the contents of several safety deposit boxes and bank accounts, and a sum of

currency.

      These properties and items were implicated in drug trafficking. At one of

the houses, police found 380 grams of cocaine, money order receipts for

approximately $134,000, and firearms. At a second house, where Lowe allegedly

lived, police found marijuana seeds and growing instructions, firearms, $23,313 in

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cash, money order receipts for approximately $161,000, money orders for

approximately $18,400, and several vehicles. In the vehicles, police found large

sums of cash and money order receipts for large sums of money.

       In the complaint, the government listed as possible claimants Appellant

Odessa Lowe, Robert Shelborne, III, and Donel Hatcher. Appellant Lowe owned

the parcels of real property identified in the government’s complaint. Lowe was

the only claimant to appear in response to the complaint.

B. Settlement Agreement and 2009 Consent Judgment

           Nearly three years later, Appellant Lowe and the government settled. In a

February 2009 settlement agreement, Lowe, who was represented by appointed

counsel, consented to forfeiture of two parcels of real property, the firearms, and

the contents of several safety deposit boxes and bank accounts. The government

consented to dismiss the forfeiture action as to the remaining two parcels of real

property, the vehicles, a portion of the contents of one safety deposit box, and the

contents of several of the bank accounts.1 The settlement agreement purported to

resolve all issues in the forfeiture action without the need for further litigation. In

addition, Lowe agreed to hold the government harmless from claims, suits, or


       1
          Lowe and the government also stipulated to dismiss the forfeiture action as to several of
the firearms and two sums of currency because that property was already forfeited in a separate
criminal case.

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demands arising from the forfeiture.

      In February 2009, Appellant Lowe and the government jointly moved the

district court for a consent judgment. On February 5, 2009, the district court

entered a consent judgment and final order of forfeiture making the terms of the

settlement the order of the court.

C. Post-Judgment Motions Two Years Later

      Over two years later, on May 25, 2011, Lowe filed a “motion for

reappointment of counsel.” Lowe’s one-page motion quoted 18 U.S.C.

§ 983(b)(2) in full but included no facts or argument.2 The district court denied

Lowe’s motion without prejudice on June 1, 2011 because Lowe did not provide

any factual basis to show she was entitled to appointment of counsel.

      On June 3, 2011, Lowe moved the district court to set aside the February

2009 consent judgment pursuant to Federal Rule of Civil Procedure 60(b). Lowe

did not specify which prong of Rule 60(b) served as the basis for her motion.

Lowe argued that (1) the forfeiture constituted double jeopardy because she had

forfeited $46,500 as part of a criminal case for structuring transactions to evade


      2
        18 U.S.C. § 983(b)(2)(A) states:
      If a person with standing to contest the forfeiture of property . . . is financially unable to
      obtain representation by counsel, and the property subject to forfeiture is real property
      that is being used by the person as a primary residence, the court . . . shall insure that the
      person is represented by an attorney . . . with respect to the claim.

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reporting requirements; (2) the forfeited property was not subject to forfeiture

because Lowe was an “innocent owner” unaware of criminal activity involving her

property; and (3) the settlement was void due to mutual mistake of law. See 18

U.S.C. § 983(d). In an attached affidavit, Lowe stated that she did not understand

before settling that the government would have to prove its case as to each

defendant property.

      On June 28, 2011, the district court denied Lowe’s Rule 60(b) motion. The

district court explained that Lowe’s motion was untimely because it was filed

nearly two and a half years after the final consent judgment and Lowe failed to

provide sufficient reason for the delay. Accordingly, the motion fell outside the

one-year time limit for motions under Rule 60(b)(1), (2), or (3), and the motion

was not filed within a reasonable time, as required by the remaining prongs of

Rule 60(b). See Fed. R. Civ. P. 60(c)(1).

      The district court added that Lowe’s motion would fail on the merits even if

it were timely. The district court explained that the Supreme Court held in United

States v. Ursery, 518 U.S. 267, 292, 116 S. Ct. 2135, 2149 (1996), that civil

forfeiture did not constitute punishment for purposes of the Double Jeopardy

Clause. By consenting to the civil consent judgment and forfeiture, Lowe waived

any “innocent owner” defense. Finally, Lowe failed to identify any mutual

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“mistake” made by the parties to the forfeiture proceeding that would void the

settlement agreement.

      Nearly four months later, on October 24, 2011, Lowe filed a motion for an

excessive-fines determination, pursuant to 18 U.S.C. § 983(g). In this motion,

Lowe claimed that the 2009 forfeiture violated the Eighth Amendment Excessive

Fines Clause because the forfeiture was in excess of $450,000 but the Sentencing

Guidelines penalty for Lowe’s currency-transactions-reporting offense was only

$5,000.

      In an October 27, 2011 order, the district court denied Lowe’s motion. The

district court construed Lowe’s motion as a motion to alter or amend the consent

judgment under Rule 59(e) or to obtain relief from the consent judgment under

Rule 60(b). The district court stated that, like Lowe’s June 3, 2011 motion, this

October 24, 2011 motion was untimely under Rule 60 because it was filed two and

a half years after the February 2009 consent judgment. The district court further

concluded that any motion under Rule 59(e) was also untimely because more than

28 days had passed since entry of the consent judgment. The district court

explained that, in any event, Lowe’s motion failed to set forth, much less argue,

any grounds warranting relief under either Rule 59 or Rule 60.




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                                     II. DISCUSSION3

       As an initial matter, we lack jurisdiction to review any order other than the

district court’s October 27, 2011 order denying Lowe’s motion for an excessive-

fines determination. “[T]he taking of an appeal within the prescribed time is

mandatory and jurisdictional.” Bowles v. Russell, 551 U.S. 205, 209, 127 S. Ct.

2360, 2363 (2007) (internal quotation marks omitted). “Absent the filing of a

timely notice, this Court does not have jurisdiction over the appeal.” Wooden v.

Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1272 (11th Cir. 2001).

       Lowe had 60 days to appeal the district court’s June 1, 2011 and June 28,

2011 orders. See Fed. R. App. P. 4(a)(1)(B). But Lowe did not appeal either of

these orders until November 16, 2011, well beyond the 60-day window. In her

“Motion to Appeal 10/27/11 Denial” filed on November 16, 2011, Lowe purported

to appeal the district court’s denials of (1) “the reappointment of Counsel Motion,”

denied on June 1, 2011; (2) the “Rule 60-b Motion,” denied on June 28, 2011; and

(3) the motion for an excessive fines determination, denied on October 27, 2011.

Lowe’s appeal was timely only as to the district court’s October 27, 2011 order.



       3
        This Court reviews for abuse of discretion a district court’s order under Rules 60(b) or
59(e). Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999)
(Rule 60(b)); Shuford v. Fidelity Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir.
2007) (Rule 59(e)).

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Accordingly, we lack jurisdiction to review the district court’s June 1, 2011 denial

of Lowe’s motion to reappoint counsel and its June 28, 2011 ruling that Lowe’s

Rule 60(b) motion was untimely.

      Turning to the October 27, 2011 order, we conclude that the district court

did not abuse its discretion by denying Lowe’s motion for an excessive-fines

determination. Lowe’s motion argued that the forfeiture she expressly agreed to

violated her Eighth Amendment rights. The district court thus correctly construed

Lowe’s motion as either a Rule 60(b) motion for relief from the consent judgment

entered February 5, 2009 or a Rule 59(e) motion to alter or amend that judgment.

Lowe filed this motion more than two and a half years after the entry of judgment.

Accordingly, Lowe’s motion did not meet the timely filing requirements of Rule

59(e). See Fed. R. Civ. P. 59(e) (requiring filing “no later than 28 days after the

entry of the judgment”). Likewise, Lowe’s motion did not meet the timely filing

requirements of Rule 60(b) because it was not filed within “a year after the entry

of the judgment or order” or “within a reasonable time.” Fed. R. Civ. P. 60(c)(1).

For these reasons, the district court did not abuse its discretion by denying Lowe’s

motion.

      AFFIRMED.




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