     Case: 19-10625    Document: 00515343956     Page: 1   Date Filed: 03/13/2020




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

                                                                          FILED
                                No. 19-10625                        March 13, 2020
                              Summary Calendar
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

ADRIAN JIMINEZ-GARCIA, also known as Adrian Jimenez-Garcia,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Adrian Jiminez-Garcia, federal prisoner # 39740-177, appeals the
district court’s denial of his Federal Rule of Civil Procedure 60(b)(4) motion for
relief from the 2010 judgment convicting him of, and sentencing him for, bank
robbery. The district court denied Jiminez-Garcia’s motion on the ground that,
inter alia, the Federal Rules of Civil Procedure do not apply in criminal
proceedings. On appeal, Jiminez-Garcia contends that his judgment is void
because it reflected a sentence that incorporated guideline enhancements with
which he was not charged in his indictment.
      We have a continuing duty to consider, sua sponte, if necessary, the basis
of the district court’s and our jurisdiction. See Solsona v. Warden, F.C.I., 821
    Case: 19-10625     Document: 00515343956      Page: 2   Date Filed: 03/13/2020


                                  No. 19-10625

F.2d 1129, 1132 n.2 (5th Cir. 1987); Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). Although Jiminez-Garcia filed his Rule 60(b) motion after the
denial of a prior 28 U.S.C. § 2255 motion, the district court treated it as arising
solely in his criminal proceeding and did not consider whether Jiminez-Garcia
was attempting to file what amounted to an unauthorized successive § 2255
motion. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005); United States v.
Hernandes, 708 F.3d 680, 681-82 (5th Cir. 2013). The district court did not
conduct this threshold determination, and therefore the district court did not
ensure its jurisdiction over Jiminez-Garcia’s motion. See Hernandes, 708 F.3d
at 681–82; 28 U.S.C. § 2253(c). When a district court “fails to explicitly decide
[an] issue” that weighs on the district court’s jurisdiction, the “better solution
is to remand the case to the district court for determination of the jurisdictional
questions” rather than dismissing the matter altogether. Getty Oil Corp., a
Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1260 n.8 (5th Cir.
1988); Smith v. Bank of Am. Corp., 605 F. App’x 311, 312–15 & n.5 (5th Cir.
2015) (vacating judgment and remanding for “district court to determine its
own jurisdiction in the first instance”).
      Subject to a narrow exception that is inapplicable in this case, a
certificate of appealability (COA) is required to appeal the denial of a Rule
60(b) motion filed after the denial of a § 2255 motion. See Ochoa Canales v.
Quarterman, 507 F.3d 884, 888 (5th Cir. 2007); § 2253(c). The district court
must make the first judgment as to whether a COA should issue. Rule 11(a),
RULES GOVERNING § 2255 PROCEEDINGS; see also Black v. Davis, 902 F.3d 541,
543–45 (5th Cir. 2018) (§ 2254 case), cert. denied, 2020 U.S. LEXIS 372
(Jan. 13, 2020). Because the district court has not ruled on whether Jiminez-
Garcia should be granted a COA to challenge the denial of his Rule 60(b)
motion, this court lacks appellate jurisdiction to consider the district court’s



                                        2
    Case: 19-10625    Document: 00515343956     Page: 3   Date Filed: 03/13/2020


                                 No. 19-10625

denial of Jiminez-Garcia’s Rule 60(b) motion. See Black, 902 F.3d at 543–53.
Although “we are without jurisdiction unless the district court either granted
or denied a COA” and although “we are foreclosed from treating . . . [Jiminez-
Garcia’s] request for relief in our court as a COA,” we can still remand to the
district court to conduct the threshold determination of whether Jiminez-
Garcia’s Rule 60(b) motion amounts to an unauthorized successive § 2255
motion. Crutsinger v. Davis, 929 F.3d 259, 266 (5th Cir. 2019).
      Accordingly, the district court’s judgment denying Jiminez-Garcia’s Rule
60(b) motion is VACATED. This case is REMANDED for the district court to
determine in the first instance whether it has jurisdiction to consider Jiminez-
Garcia’s Rule 60(b) motion and whether it should issue a COA. See Black, 929
F.3d at 543–45; Getty Oil Corp., 841 F.2d at 1260 n.8.




                                       3
