BLD-149                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-1070
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                              MICHAEL MCEACHERN,
                                           Appellant
                       ____________________________________

                      Appeal from the United States District Court
                         for the Western District of Pennsylvania
                             (D.C. Criminal No. 08-cr-00116)
                     District Judge: Honorable Donetta W. Ambrose
                      ____________________________________

                   Submitted for Possible Summary Action Pursuant to
                        Third Circuit LAR 27.4 and I.O.P. 10.6
                                     March 11, 2010

      Before: McKEE, Chief Judge, RENDELL and CHAGARES, Circuit Judges.

                                   (Filed: May 20, 2010)
                                         _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM

       In November 2008, Michael McEachern was sentenced to 41 months in prison

after pleading guilty to uttering counterfeit securities. He waived his right to appeal or
otherwise challenge his conviction or sentence.1 In November 2009, McEachern filed a

motion to dismiss the charges alleging defects in the indictment. The District Court

denied the motion, and McEachern filed a timely notice of appeal.

       We agree with the District Court that McEachern’s motion is meritless. As noted

above, McEachern waived his right to challenge his conviction. Moreover, while

McEachern expressly disavowed 28 U.S.C. § 2255 as the basis for his motion, he did not

provide a jurisdictional basis for the District Court to act on his motion. Furthermore, as

noted by the government, a motion challenging the institution of the prosecution must be

made before trial. See Fed. R. Crim. P. 12(b)(3)(A).

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




  1
    McEachern reserved the right to appeal his sentence if it exceeded the statutory
maximum or unreasonably exceeded the guideline range. Neither situation is at issue
here.

                                             2
