     Case: 09-60138     Document: 00511005417          Page: 1    Date Filed: 01/15/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 15, 2010
                                     No. 09-60138
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

HAROLD W. ROBERTS, JR.

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 4:00-CR-14-1


Before GARWOOD, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
        Harold W. Roberts, Jr., federal prisoner # 08901-055, was convicted of one
count of possessing marijuana with intent to distribute and in April 2001 was
sentenced to serve 120 months in prison. We affirmed the judgment of the
district court in August 2002. In February 2004 this court denied Roberts’s
request to file a successive section 2255 motion.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-60138    Document: 00511005417 Page: 2        Date Filed: 01/15/2010
                                 No. 09-60138

      The district court later denied the purported F ED. R. C IV. P. 60(b) motion
that Roberts filed in July 2008 to challenge his sentence, and Roberts now
appeals that denial. He insists that he was improperly sentenced based on both
the marijuana and the crack cocaine that was involved with his offense and that
he should be resentenced.
      Rule 60(b) provides relief only from judgments imposed in civil cases; Rule
60(b) “simply does not provide relief from a judgment in a criminal case.” United
States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999) (Dennis, J., dissenting from
grant of motion for temporary stay pending appeal); see also F ED. R. C IV. P. 1
(limiting the scope of the rules of civil procedure to civil actions). Accordingly,
the district court did not err in concluding that Roberts could not invoke Rule
60(b) to challenge his sentence.
      Roberts’s Rule 60(b) motion is best construed as an unauthorized
successive 28 U.S.C. § 2255 motion that the district court lacked jurisdiction to
consider.   See Gonzalez v. Crosby, 545 U.S. 524, 529-31 (2005); 28 U.S.C.
§ 2244(b)(3)(A), § 2255(h). Because this appeal is patently frivolous, we decline
to remand this case to the district court for a decision on whether a certificate
of appealability should issue and instead DISMISS this appeal for lack of
jurisdiction. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).




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