CLD-012                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 10-2874
                                  ___________

                       UNITED STATES OF AMERICA

                                        v.

                        GARY RAMSEY, a/k/a “ROCK”

                             GARY RAMSEY,
                                           Appellant
                   ____________________________________

                   Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                      (D.C. Criminal No. 01-cr-00005-004)
                   District Judge: Honorable William H. Yohn
                   ____________________________________

               Submitted for Possible Summary Action Pursuant to
                    Third Circuit LAR 27.4 and I.O.P. 10.6
                               October 15, 2010

           Before: RENDELL, FUENTES and SMITH, Circuit Judges

                        (Opinion filed: October 26, 2010)
                                   _________

                          OPINION OF THE COURT
                                _________

PER CURIAM

    Gary Ramsey, a federal prisoner presently confined in USP Hazelton, appeals pro
se from the District Court’s order denying his motion to dismiss the indictment. Because

we conclude that this appeal presents no substantial question, we will summarily affirm.

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       A jury for the Eastern District of Pennsylvania convicted Ramsey of numerous

crimes arising out of two armed bank robberies. The court sentenced to him to 900

months of imprisonment in October 2002. This Court affirmed in October 2003. See

United States v. Ramsey, 80 F. App’x 168 (3d Cir. 2003). The District Court denied his

28 U.S.C. § 2255 motion in February 2006, and we denied a certificate of appealability.

See C.A. 06-1671.

       In June 2010, Ramsey filed a motion to dismiss certain counts in the indictment

pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). He claimed that the

indictment was deficient because it did not allege that he robbed a “national bank” within

the meaning of the bank robbery statute. See 18 U.S.C. § 2113. The District Court

denied the motion as frivolous, noting that Rule 12(b)(3)(B) relates to motions raised

before trial or while the case is pending. Ramsey filed a timely notice of appeal.

       Motions alleging a defect in an indictment must be made before trial. Fed. R.

Crim. P. 12(b)(3). However, “at any time while the case is pending, the court may hear a

claim that the indictment or information fails to invoke the court’s jurisdiction or to state

an offense.” Fed. R. Crim. P. 12(b)(3)(B). Ramsey argues that the District Court

incorrectly denied his motion, since he challenged the indictment on the ground that it

failed to state an offense. However, the District Court properly denied the motion
                                              2
outright, given that his case is no longer “pending.” Furthermore, this Court previously

rejected a similar claim in denying his motion for certificate of appealability in 2006. See

C.A. 06-1671.

       Because the appeal does not present a substantial question, we will summarily

affirm the District Court’s order denying the motion. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.




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