                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 07-11896                ELEVENTH CIRCUIT
                                                               MARCH 6, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                      D. C. Docket No. 90-00759-CR-SH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

MARVIN HINSEY,

                                                           Defendant-Appellant.


                         ________________________

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

                              (March 6, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Marvin Hinsey, a federal prisoner convicted of armed robbery and the use of
a firearm during the commission of a felony, appeals pro se the district court’s

denial of his F ED. R. C IV. P. 52(a) motion to vacate its denial of his 18 U.S.C. §

3582(c)(2) motion for reduction of sentence based on Amendment 599 to the

Guidelines. In his motion to vacate, Hinsey argued, under Rule 52(a), that the

district court failed to give the facts and legal reasoning that it relied on in denying

his § 3582 motion. On appeal, Hinsey argues that he was entitled to a reduction of

sentence based on Amendment 599 because he was given a weapons enhancement

on top of his conviction for using a firearm during the commission of a felony, in

violation of 18 U.S.C. § 924(c).

      We review our subject matter jurisdiction de novo. United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (per curiam). “In a criminal

case, a defendant’s notice of appeal must be filed in the district court within 10

days . . . of the entry of either the judgment or the order being appealed. . . .” F ED.

R. A PP. P. 4(b)(1)(A)(i). A motion in a criminal case “must be filed within the

period of time allotted for the filing of a notice of an appeal” in order to toll the

time for filing the notice of appeal and give us jurisdiction to consider the

underlying motion. See United States v. Russo, 760 F.2d 1229, 1230 (11th Cir.

1985) (per curiam).

      Here, the district court denied Hinsey’s § 3582(c)(2) motion on January 8,



                                            2
2007. Hinsey filed his motion to vacate the denial of his § 3582(c)(2) motion on

January 26, 2007. As such, Hinsey’s motion to vacate was not filed within 10 days

of the district court’s denial of his § 3582 motion. Therefore, we do not have

jurisdiction to review the district court’s denial of his underlying § 3582 motion.

      In contrast, we do have jurisdiction to consider Hinsey’s appeal of the denial

of his motion to vacate because his notice of appeal was filed within ten business

days of the district court’s denial of his motion. However, when an appellant does

not raise an issue on appeal, it is abandoned. See Greenbriar, Ltd. v. City of

Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

      On appeal, Hinsey only challenges the district court’s denial of his § 3582

motion. As previously stated, we do not have jurisdiction to consider that denial.

He does not challenge the district court’s denial of his motion to vacate. Therefore,

he has abandoned that claim.

      Even if we were to liberally construe Hinsey’s brief on appeal as a challenge

to the district court’s denial of his F ED. R. C IV. P. 52(a) motion to vacate, we would

find no reversible error. The Federal Rules of Civil Procedure cannot be used to

challenge the denial of a § 3582 motion. See United States v. Fair, 326 F.3d 1317,

1317 (11th Cir. 2003) (per curiam). “[T]he Federal Rules of Civil Procedure

‘unambiguously’ limited their application to civil cases.” Id. at 1318. “[A] § 3582



                                            3
motion is not a civil post-conviction action, but rather a continuation of a criminal

case.” Id. Because the Federal Rules of Civil Procedure cannot be used to

challenge the denial of a § 3582 motion, Hinsey cannot use F ED. R. C IV. P. 52(a) to

challenge the district court’s denial of his § 3582 motion.

      Upon review of the record and the parties’ briefs, we discern no reversible

error. Accordingly, we affirm the district court’s denial of Hinsey’s motion to

vacate. We dismiss Hinsey’s appeal for lack of jurisdiction to the extent that he

appeals the denial of his § 3582 motion.

      DISMISSED IN PART, AFFIRMED IN PART.




                                           4
