                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-7-2007

USA v. Mortimer
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2142




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 07-2142
                                       ___________

                            UNITED STATES OF AMERICA

                                           v.

                               THOMAS MORTIMER, III,

                                                 Appellant
                           _____________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                            (D.C. Criminal No. 05-cr-00186)
                       District Judge: Honorable Alan N. Bloch
                             _________________________


                      Submitted under Third Circuit LAR 34.1(a)
                                 November 2, 2007
              Before: MCKEE, SMITH and CHAGARES, Circuit Judges

                                (Filed: December 7, 2007)
                                       ___________

                                        OPINION
                                       ___________

PER CURIAM

       Appellant, Thomas Mortimer, III, proceeding pro se, appeals from the District

Court’s order denying his “motion for correction of sentence computation.” For the

reasons that follow, we will affirm.
       In March 2003, the Federal Bureau of Investigations discovered that Mortimer had

defrauded his employer of over $250,000.00. On October 12, 2005, Mortimer pleaded

guilty to conspiring to defraud the United States in violation of 18 U.S.C. § 371. On

January 10, 2006, the District Court sentenced Mortimer to 30 months of imprisonment,

three years of supervised release, and restitution in the amount of $228,458.99. Mortimer

did not file a direct appeal.

       Approximately one year later, on January 22, 2007, Mortimer filed a pro se

“motion for correction of sentence computation pursuant to Federal Rule of Civil

Procedure 60(b)(1).” In his motion, Mortimer alleged that his sentence violated the Ex

Post Facto Clause of the United States Constitution because it was calculated according to

the United States Sentencing Guidelines Manual in effect at the time of sentencing rather

than the edition in effect at the time of his offense, which, according to Mortimer,

recommended a lesser sentence. On April 3, 2007, the District Court dismissed

Mortimer’s motion on the ground that Federal Rule of Civil Procedure 60(b) does not

provide a basis for the court to grant relief in a criminal case. The court explained that

although it could choose to construe the motion as one pursuant to 28 U.S.C. § 2255,

Mortimer would not be entitled to relief regardless of how the motion were construed.1



   1
    As part of its April 3, 2007 dismissal order, the District Court also denied Mortimer’s
“Motion for Default Judgment Pursuant to Rule 7.” However, because Mortimer did not
address the court’s denial of this motion in his appellate brief, we will not review this
ruling. For the same reason, we will not review the District Court’s denial on April 10,
2007, of Mortimer’s motion for reconsideration.

                                              2
        We will affirm. The District Court did not err in denying Mortimer’s Rule 60(b)

motion. As the court explained, Rule 60(b) of the Federal Rules of Civil Procedure is not

the proper vehicle for Mortimer to challenge his sentence, as that rule applies to civil, not

criminal, cases. See Fed. R. Civ. P. 60(b). Moreover, we see no error in the court

declining to construe Mortimer’s motion as a motion to correct his sentence pursuant to

28 U.S.C. § 2255.

        In light of our disposition, Mortimer’s motion to expedite this appeal is denied as

moot.




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