              Case: 13-14489    Date Filed: 08/29/2014   Page: 1 of 6


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14489
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 0:95-cr-06031-KLR-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

NORMAN ROBINSON,

                                                             Defendant-Appellant.

                          ________________________

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

                                (August 29, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:

      Norman Robinson, a federal prisoner proceeding pro se, appeals the denial

of his Federal Rule of Civil Procedure 60(b) motion to vacate his sentence.
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Because the district judge lacked jurisdiction, we vacate and remand with

instructions to dismiss.

                                 I. BACKGROUND

      In 1995, Robinson was convicted of conspiracy to possess with intent to

distribute crack cocaine, in violation of 21 U.S.C. § 846, and two counts of

possession with intent to distribute crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. Before sentencing, the government notified

Robinson it was seeking an enhanced sentence under 21 U.S.C. §§ 841 and 851,

based upon his two prior convictions for possession of cocaine. The United States

Probation Office also prepared a presentence investigation report, showing

Robinson was classified as a career offender under U.S.S.G. § 4B1.1. Robinson’s

Sentencing Guidelines imprisonment range was 360 months to life. The district

judge sentenced Robinson to 360 months of imprisonment on each count to run

concurrently.

      In 1999, Robinson filed a timely pro se, habeas petition under 28 U.S.C. §

2255 and raised seven claims of ineffective assistance of counsel. The district

judge denied the motion on the merits. Robinson appealed; we declined to issue a

certificate of appealability (“COA”). Thereafter, in his criminal case, Robinson

filed multiple pro se 18 U.S.C. § 3582(c)(2) motions to reduce his sentence, which

were denied. He then filed a Rule 60(b) motion and challenged the district judge’s


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denial of one of his § 3582(c)(2) motions. The district judge denied the Rule 60(b)

motion.

      On July 15, 2013, Robinson filed another Rule 60(b) motion, the subject of

this appeal, and challenged his conviction and sentence. He contended the grand

jury should have been informed of, and the indictment should have contained,

information relating to the 21 U.S.C. § 851 enhancement, his career-offender

classification, and his potential sentence of life imprisonment. He argued the

Supreme Court’s decision in Alleyne v. United States, 570 U.S. ___, 133 S. Ct.

2151 (2013), required the government to prove to the jury every fact used to trigger

or enhance his sentence beyond a reasonable doubt.

      On August 13, 2013, the district judge denied the Rule 60(b) motion. The

judge stated he had reviewed the relevant portions of the record but did not specify

the reasons for his decision. Robinson moved for reconsideration and maintained

Alleyne was applicable to his case retroactively. The district judge denied the

motion for reconsideration.

      On appeal proceeding pro se, Robinson argues the district judge should have

reopened his § 2255 proceeding, based on the Supreme Court’s decision in

Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276 (2013). He maintains

Alleyne is applicable to his case retroactively and requires reversal, because the

jury did not find the specific facts the district judge used to enhance his sentence.


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                                 II. DISCUSSION

      We typically review a district judge’s denial of a Rule 60(b) motion for

abuse of discretion. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)

(per curiam). We review de novo whether the district judge properly exercised

jurisdiction over a claim. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th

Cir. 2008) (per curiam). Where a district judge lacked jurisdiction, we have

jurisdiction only for the limited purpose of correcting the district judge’s error in

considering the claim. See Williams v. Chatman, 510 F.3d 1290, 1294-95 (11th

Cir. 2007) (per curiam) (recognizing the district judge lacked jurisdiction to

consider an impermissible successive habeas corpus petition, vacating the judge’s

order, and remanding with instructions to dismiss).

      A federal prisoner seeking relief from his conviction or confinement may

file, pursuant to 28 U.S.C. § 2255, a motion to vacate in district court. Sawyer v.

Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). A prisoner may not file a second or

successive motion under § 2255 without our permission. 28 U.S.C. § 2255(h).

Absent our permission, a district judge lacks jurisdiction to address the motion and

must dismiss it. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (per

curiam). We look beyond the label of a prisoner’s post-conviction motion to

determine if he actually is seeking relief under § 2255. See, e.g., Gilbert v. United

States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc) (construing a federal


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prisoner’s Rule 60(b) motion as a successive § 2255 petition); Franqui v. Florida,

638 F.3d 1368, 1374 (11th Cir. 2011) (construing a state prisoner’s Rule 60(b)

motion as a successive habeas petition). A Rule 60(b) motion, which asserts a

claim for relief, rather than “pointing out a defect in the integrity of the earlier §

2255 motion proceeding . . . is the equivalent of a second or successive motion and

is barred by § 2255(h).” Gilbert, 640 F.3d at 1323.

       Robinson’s Rule 60(b) motion constitutes an impermissible second or

successive § 2255 motion.1 The motion challenges his convictions and sentences

and does not state a defect in the integrity of the earlier § 2255 proceedings.

Gilbert, 640 F.3d at 1323. Robinson asserts he should not have been convicted and

sentenced to 360 months of imprisonment, because the indictment did not contain,

and the government did not prove every fact used to enhance or increase his

sentence beyond a reasonable doubt. This is precisely the type of collateral attack

on a conviction and sentence contemplated by § 2255. See 28 U.S.C. § 2255(a)

(stating a prisoner may move the court to vacate, set aside, or correct his sentence

if the sentence was imposed in violation of the Constitution or the laws of the

United States). Moreover, Robinson’s first § 2255 motion raised ineffective-

assistance-of-counsel claims, and his Rule 60(b) motion does not assert any error
       1
          Because Robinson’s motion was not a true Rule 60(b) motion, a COA was not required
to appeal the denial of the motion. Cf. Williams, 510 F.3d at 1294-95 (stating a district judge
lacks jurisdiction to consider a Rule 60(b) motion, which actually is an impermissible successive
§ 2254 petition, and cannot issue a COA with respect to the claims raised in the successive
petition).
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by the district judge in denying those claims. Gilbert, 640 F.3d at 1323 (“Because

[the defendant’s] motion sought to assert or reassert a claim for relief, instead of

pointing out a defect in the integrity of the earlier § 2255 motion proceeding in his

case, . . . his motion is the equivalent of a second or successive motion and is

barred by § 2255(h).”).

       Robinson’s motion is the equivalent of a second or successive § 2255

motion; therefore, he was required to seek our permission to file it. 28 U.S.C.

§ 2255(h). Because Robinson did not obtain our permission, the district judge

should have dismissed the motion for lack of subject-matter jurisdiction. Holt, 417

F.3d at 1175 (recognizing without authorization a district judge lacks jurisdiction

to consider a second or successive petition). 2 We vacate the district judge’s order

and remand with instructions to dismiss the Rule 60(b) motion.

       VACATED AND REMANDED WITH INSTRUCTIONS.




       2
         To the extent Robinson raises issues for the first time on appeal, e.g., that the Supreme
Court’s Descamps decision warrants Rule 60(b) relief or the reopening of his first § 2255
proceeding, those issues are deemed waived. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998) (per curiam) (recognizing issues not raised in district court generally are deemed
waived).
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