                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                          February 6, 2006
                                      TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,                    No. 05-6342
           v.                                            (W.D. Oklahoma)
 RONNIE GLENN TRIPLETT,                               (D.C. No. 04-CR-62-C)

                  Defendant - Appellant.


                                ORDER AND JUDGMENT         *




Before TACHA, Chief Circuit Judge,         ANDERSON and BALDOCK , Circuit
Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal.     See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       This case comes to us in an odd posture. It began when

defendant/appellant Ronnie Glenn Triplett pled guilty pursuant to a plea

agreement to three counts of a six-count indictment. Specifically, he pled guilty

to two counts of distribution of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), and one count of being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court applied the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), to Triplett and

sentenced him to 188 months’ imprisonment, followed by three years of

supervised release. His sentence was affirmed on appeal.            United States v.

Triplett , No. 05-6061 (10th Cir. Dec. 27, 2005). Triplett’s petition for rehearing

and rehearing en banc was denied by this court on January 31, 2006, and his

motion to stay the mandate was denied by this court on February 2, 2006.

       While that appeal was pending, Triplett filed a motion in the district court

entitled “Motion for Relief from Judgment and Commitment Order Pursuant to

Rule 60(b)(4) or 60(b)(6).” The motion sought an order from the district court

vacating his conviction, dismissing the indictment, and releasing him from

custody. Although his direct appeal was pending before our court, the district

court nonetheless concluded it had jurisdiction over this motion, and it denied it

on the merits for failure to state a claim for relief. Proceeding       pro se , Triplett

now attempts to appeal that denial, and that attempt is what is before us for


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consideration. For reasons set out more fully below, we dismiss this appeal

because it is jurisdictionally defective.



                                  BACKGROUND

      On two separate occasions on the evening of January 6, 2004, Triplett sold

methamphetamine to an Oklahoma City undercover police officer. The sales took

place at Triplett’s place of business. The next day, during the execution of a

search warrant at Triplett’s business, police officers seized a shotgun and

ammunition, along with many other items associated with the production and

distribution of methamphetamine. A subsequent search of Triplett’s residence

resulted in the seizure of more methamphetamine. The two drug sales and the

shotgun and ammunition provided the basis for the three counts of conviction.

      The plea agreement entered into by Triplett and the government, as well as

the colloquy at Triplett’s change of plea hearing, put him on notice that he was

exposed to sentencing under the ACCA. The plea agreement also contained a

waiver of the right to appeal and to collaterally challenge Triplett’s guilty plea

and sentence, with certain exceptions. First, Triplett could appeal an upward

departure from the sentencing guideline range calculated under the United States

Sentencing Commission,     Guidelines Manual (“USSG”). Second, Triplett could

bring an appeal “based on changes in the law reflected in Tenth Circuit or


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Supreme Court cases decided after the date of this agreement that are held by the

Tenth Circuit or Supreme Court to have retroactive effect.” Plea Agreement at 7.

Finally, Triplett was “specifically limited to conditionally challenge the

application of the [ACCA] to Count 4 . . . the application of the Career Offender

Guideline . . . to counts 1 and 2.”   Id.

       At sentencing on February 1, 2005, the probation office’s presentence

report (“PSR”) determined that the ACCA was applicable, based upon four prior

convictions involving drugs or firearms. This caused Triplett’s total offense level

to be 34. With a three-level reduction for acceptance of responsibility, Triplett’s

final total offense level was 31. The PSR therefore concluded that a total offense

level of 31 with a criminal history category of VI resulted in a guidelines

sentencing range of 188-235 months.

       Because Triplett’s sentencing occurred a few weeks after the Supreme

Court’s decision in United States v. Booker , 125 S. Ct. 738 (2005), the district

court correctly acknowledged that the Sentencing Guidelines were advisory, not

mandatory. The district court then explained to Triplett why the guideline range

was appropriate and sentenced him at the bottom of that range. As indicated, our

court affirmed Triplett’s sentence on direct appeal.

       When Triplett filed the instant motion pursuant to Fed. R. Civ. P. 60(b)(4)

or (b)(6), the district court denied it, stating:


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       Fed. R. Civ. P. 60 governs judgments in a civil proceeding. It cannot
       be used to set aside a criminal judgment.   See United States v.
       Bennett , Case No. 97-6063, 1997 WL 748663, *1 (10th Cir. Dec. 3,
       1997)) (“Rule 60(b), however, has no application whatever to
       criminal matters.”). Because Defendant insists that his motion
       should not be construed as a 28 U.S.C. § 2255 motion, his motion
       must be denied for failure to state a claim for relief.

Order at 2. Triplett argues the court erred in denying his motion because   Booker

“judicially repealed” 18 U.S.C. § 3553(b)(1) and the “Rule of Common Law

Abatement requires that any conviction executed on the basis of repealed statute

(or any provision thereof) must be abated, dismissed, and the Court is without

jurisdiction to entertain further proceedings under the indictment.” Appellant’s

Br. at 2.



                                     DISCUSSION

       There are several reasons why this appeal is not properly before us, nor was

it properly before the district court. First, many months after he filed his direct

appeal, and while the appeal was pending before a panel of this court, he filed a

motion to file a supplemental brief in his direct appeal, seeking to raise the very

same issue he argued in his 60(b) motion before the district court and he argues

now on appeal to us.   1
                           That motion was referred to the panel, which denied “all



       He filed his appeal on February 10, 2005. He filed his 60(b) motion on
       1

July 14, 2005. The district court denied his motion on July 26, 2005. On August
                                                                     (continued...)

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pending motions” in its December 27, 2005 order and judgment affirming

Triplett’s sentence. Thus, his attempt to raise that issue on direct appeal was

denied. Accordingly, he is procedurally barred from raising that issue again,

inasmuch as he could and should have raised it on direct appeal and his untimely

effort to do so was denied.

       Second, as a threshold matter, the district court initially assumed

jurisdiction over Triplett’s Rule 60(b) motion, citing a civil case,      Aldrich Enters.,

Inc. v. United States , 938 F.2d 1134 (10th Cir.1991), as authority. In       Aldrich

Enters., Inc. our court stated that while the district court “lacked jurisdiction to

grant the Rule 60(b)(2) motion due to the appeal [filed earlier] . . . the court was

free to consider the motion, and the court could then either deny it on the merits,

or the court could have notified us of its intention to grant the motion upon proper

remand.” Id. at 1143. But Aldrich does not in any way apply in this context.

       Rule 60(b) has no applicability to a criminal proceeding.       See United States

v. Mosavi , 138 F.3d 1365, 1366 (11th Cir. 1998) (per curiam) (“Rule 60(b) simply

does not provide for relief from judgment in a criminal case.”);       see also United

States v. Keefe , 169 F.3d 281, 289 (5th Cir. 1999). While a court always has



       (...continued)
       1

29, 2005, he filed a motion to file a supplemental brief in his direct appeal. That
motion was referred to the panel on the merits on September 9, 2005. Our court
affirmed his sentence on direct appeal on December 27, 2005 and dismissed all
pending motions.

                                             -6-
jurisdiction to determine whether it has jurisdiction, Rule 60(b) is not an

independent source of jurisdiction in a criminal case. The rule certainly was

insufficient to confer jurisdiction on the district court when the existence of a

prior pending appeal had transferred jurisdiction months before to our court.

More specifically, and in any event, that rule did not confer jurisdiction at all,

either as a threshold matter or as a vehicle for relief.

      The district court had only two possible alternative courses of conduct. It

could have dismissed Triplett’s motion, with or without prejudice, because of lack

of jurisdiction, or it could have recharacterized the motion as something

cognizable under the Federal Rules of Criminal Procedure, such as a Rule 33

motion for a new trial, or a Rule 35(a) motion to correct clear error in the

judgment, or a Rule 34 motion arresting judgment. However, it is clear from the

record that no relief would have been available under any of those rules, both

because of time limits and subject matter.

      The only other conceivable recharacterization of the motion would be as a

motion for a writ of habeas corpus under 28 U.S.C. § 2255. Triplett himself

adamantly denies that his motion was a § 2255 motion. Furthermore, the district

court could not have so recharacterized the motion without following certain

procedures:

      [T]he district court must notify the pro se litigant that it intends to
      recharacterize the pleading, warn the litigant that this

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      recharacterization means that any subsequent § 2255 motion will be
      subject to the restrictions on “second or successive” motions, and
      provide the litigant an opportunity to withdraw the motion or to
      amend it so that it contains all the § 2255 claims he believes he has.

Crosby v. United States , 540 U.S. 375, 383 (2003);    accord , Davis v. Roberts , 425

F.3d 830, 835 (10th Cir. 2005). The district court did not do this.

      Finally, out of an abundance of caution and in the interests of judicial

economy, we note that Triplett’s argument on appeal is meritless.      Booker severed

portions of the Sentencing Reform Act which had made the sentencing guidelines

mandatory. Thus, it rendered the guidelines advisory, not mandatory.       Booker

neither repealed the entire Act nor required the dismissal of all sentences imposed

in accordance with the Act. Our court, in accordance with      Booker itself,

routinely reviews the application of the now-advisory guidelines to defendants

sentenced post- Booker , just like Triplett.



                                   CONCLUSION

      For the foregoing reasons, we conclude that Triplett’s motion was not

properly before the district court or this court. This appeal is DISMISSED. The

motion to stay the mandate is DENIED.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge

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