           Case: 14-11047   Date Filed: 08/13/2014   Page: 1 of 3


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11047
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:09-cr-21019-UU-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

DAVID MARRERO,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 13, 2014)

Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:
               Case: 14-11047    Date Filed: 08/13/2014    Page: 2 of 3


      David Marrero appeals the denial of his pro se motion to dismiss his

indictment for health care fraud, conspiracy to commit money laundering, and

money laundering. See Fed. R. Crim. P. 12(b)(3)(B). Marrero moved to dismiss

his indictment more than two years after his conviction became final on direct

appeal. He argued that his indictment was void ab initio because the offenses

charged were not within the power of Congress to regulate under the Commerce

Clause. The district court denied Marrero’s motion. Because Marrero failed to file

his motion while his case was pending, see id., we vacate the order that denied his

motion on the merits and remand with instructions for the district court to dismiss

for lack of jurisdiction.

      “[W]e are obligated to address the district court’s jurisdiction to issue a

ruling we are reviewing on appeal.” United States v. Diveroli, 729 F.3d 1339,

1341 (11th Cir. 2013). “[W]e review jurisdictional issues de novo.” United States

v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009).

      The district court lacked jurisdiction to entertain Marrero’s collateral

challenge to his indictment. A defendant may move to dismiss the charges against

him on the ground there is a “defect in the indictment,” but the motion must be

filed “while the case is pending.” Fed. R. Crim. P. 12(b)(3)(B). When a case is no

longer pending, the district court is divested of authority to consider a motion for

relief from the judgment. See United States v. Elso, 571 F.3d 1163, 1166 (11th


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Cir. 2009). Marrero’s case was no longer pending after he exhausted his claims on

direct appeal and we issued our mandate on September 14, 2011. See id. On

February 19, 2014, when Marrero moved to dismiss his indictment, the district

court lacked authority to consider Marrero’s motion. We vacate the order that

denied Marrero’s motion on its merits and remand with instructions for the district

court to dismiss for lack of jurisdiction.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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