                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-14431                   APRIL 1, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                D. C. Docket No. 08-00142-CV-ORL-28-GJK

UNITED STATES OF AMERICA,


                                                            Petitioner-Appellee,

                                   versus

RUSSELL GENTILE,


                                                         Respondent-Appellant.


                        ________________________

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

                             (April 1, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
      Russell Gentile appeals the district court’s order denying his motion to

vacate, brought pursuant to Fed.R.Civ.P. 60(b)(4). Gentile’s motion sought

vacatur of the district court’s underlying order granting the government’s petition

for approval of a levy on Gentile’s primary residence, pursuant to Internal Revenue

Code (“I.R.C.”) § 6334(e)(1). For the reasons set forth below, we affirm.

                                           I.

      The government filed a petition for judicial approval of a levy upon

Gentile’s primary residence, pursuant to § 6334(e)(1), for the purposes of

collecting $144,551.76 in unpaid federal taxes from 2000 and 2001. Section 6334

governs what assets are exempt from levies for tax collection purposes. Pursuant

to § 6334(e)(1), “a principal residence shall not be exempt from levy if a judge or

magistrate of a district court of the United States approves (in writing) the levy of

such residence.” The government attached the declaration of Internal Revenue

Service (“IRS”) officer Daniel Haber. Haber declared that (1) he had reviewed

applicable IRS records and determined that Gentile owed $144,551.76; (2) the IRS

gave Gentile notice, and demanded payment, of the liability, but Gentile failed to

pay; (3) the IRS had attempted to satisfy the liability from assets besides Gentile’s

private residence, but had found that no reasonable alternative existed; and (4) the

IRS generally had followed the requirements of applicable law and relevant



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administrative procedures. Gentile filed a motion to dismiss the government’s

petition for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6), on the

ground that the government had not established the essential elements of unpaid

federal income tax liabilities because the taxes demanded were an unconstitutional

direct tax on his earnings. The district court held a hearing and received exhibits.

Gentile objected to the exhibits on the ground that they did not demonstrate that

the taxes demanded were constitutional. On February 15, 2008, the district court

entered an order granting the government’s petition for approval.

      Three months later, on May 16, 2008, Gentile filed the instant motion to

vacate, pursuant to Rule 60(b)(4), on the ground that the order was void because

the district court had acted inconsistently with due process of law. Gentile asserted

that the demanded taxes were unconstitutional. The government responded that

this Court had long ago dismissed arguments such as Gentile’s that were based on

the unconstitutionality of the federal income tax. On June 16, 2008, the district

court denied Gentile’s Rule 60(b) motion to vacate. On July 31, 2008, Gentile

filed a notice of appeal (“NOA”) from this denial.

                                         II.

       As an initial matter, the scope of our review is limited to the district court’s

denial of Gentile’s Rule 60(b) motion to vacate. Gentile filed his NOA more than



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60 days after the district court’s entry of the February 15, 2008 order granting the

government’s petition for approval. See Fed.R.Civ.P. 4(a)(1)(B) (“When the

United States or its officer or agency is a party, [an NOA] may be filed by any

party within 60 days after the judgment or order appealed from is entered.”)

Gentile’s Rule 60(b) motion to vacate, moreover, did not toll the time for filing the

NOA because the Rule 60(b) motion was filed more than 10 days after the district

court granted the government’s petition for approval on February 15, 2008. See

Fed.R.Civ.P. 4(a)(4)(A)(vi) (instructing that a Rule 60 motion that is filed no later

than ten days after the judgment is entered tolls the running of the 60-day time for

filing an NOA). Therefore, the instant appeal is untimely as to the underlying

order granting the petition for approval. See Fed.R.Civ.P. 4(a)(1)(B). Moreover,

review of the denial of Gentile’s Rule 60(b) motion to vacate does not give us

authority to review the grant of the government’s petition for approval. See Am.

Bankers Ins. Co. of Florida v. Northwestern Nat’l Ins. Co., 198 F.3d 1332, 1338

(11th Cir. 1999) (holding that appeal from a denial of a Rule 60(b) motion to

vacate is “narrow in scope” and must address only the propriety of denying the

Rule 60(b) motion to vacate and not the underlying judgment).

                                         III.

      We review de novo a district court’s denial of a Rule 60(b)(4) motion to



                                           4
vacate on the ground of voidness. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.

2001). Pursuant to Rule 60(b), the district court “may relieve a party or its legal

representative from a final judgment, order, or proceeding” if, inter alia, “the

judgment is void.” Fed.R.Civ.P. 60(b)(4). “Generally, a judgment is void under

Rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject matter,

or of the parties, or if it acted in a manner inconsistent with due process of law.”

Burke, 252 F.3d at 1263 (internal quotation marks omitted). We have held that

“Rule 60(b) may not be used to challenge mistakes of law which could have been

raised on direct appeal.” Am. Bankers Ins. Co. of Florida, 198 F.3d at 1338. As to

subject matter jurisdiction, “a plaintiff who invokes the jurisdiction of a federal

court bears the burden of showing (1) an injury in fact, meaning an injury that is

concrete and particularized, and actual or imminent, (2) a causal connection

between the injury and the causal conduct, and (3) a likelihood that the injury will

be redressed by a favorable decision.” KH Outdoor, L.L.C. v. Clay County, Fla.,

482 F.3d 1299, 1303 (11th Cir. 2007). As to due process, the Due Process Clause

generally requires notice and an opportunity to be heard. Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S.Ct. 652, 657, 94 L.Ed. 865

(1950).

                                          IV.



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      The district court did not err in denying Gentile’s Rule 60(b) motion to

vacate on the ground of voidness. See Burke, 252 F.3d at 1263. Gentile argues

that the grant of the government’s petition for approval was void because (1) the

district court denied him due process by failing to consider his arguments on the

constitutionality of the demanded taxes, (2) the district court lacked subject matter

jurisdiction because the government had failed to establish an actual injury, and

(3) the demanded taxes were unconstitutional. First, the district court did not

violate Gentile’s due process rights. Haber in his declaration stated that the IRS

gave Gentile notice of the intended levy, and the record demonstrates that the

district court held a hearing on the matter. Gentile has not challenged this

evidence. Thus, Gentile received notice and an opportunity to be heard. See

Mullane, 339 U.S. at 313-14, 70 S.Ct. at 657. Gentile repeatedly argued, in his

Rule 12(b)(6) motion to dismiss and in objecting to the government’s exhibits, that

the taxes demanded were unconstitutional direct taxes on his earnings. Although

he argues as much, Gentle has not demonstrated that the district court did not take

into account these arguments.

      Also, the available record demonstrates that the district court had subject

matter jurisdiction. Haber stated that he had reviewed applicable IRS records and

determined that Gentile owed $144,551.76. Thus, the government showed that it



                                           6
suffered an actual injury, and the district court had subject matter jurisdiction. See

KH Outdoor, L.L.C., 482 F.3d at 1303. Although he argues that the government’s

showing was insufficient because it did not cite specific tax code provisions or

explain how the assessments constituted indirect taxes in assessing his tax

liabilities, Gentile has not presented evidence that the government’s notice of tax

liabilities did not include this information or how the absence of such information

establishes that the government did not suffer an injury in fact.

      Finally, Gentile’s arguments regarding the constitutionality of the demanded

taxes were not properly brought in his Rule 60(b) motion to vacate, as they should

have been made on direct appeal. See Am. Bankers Ins. Co. of Florida, 198 F.3d at

1338. Thus, we need not consider these arguments. Accordingly, because Gentile

has not demonstrated that he did not receive due process or the district court did

not have subject matter jurisdiction, we affirm.

      AFFIRMED.




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