United States v. Williams ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 21, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-3097
v. (D.C. No. 6:99-CR-10092-WEB-2)
(D. Kan.)
CRAIG T. WILLIAMS,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges. **
Defendant-Appellant Craig T. Williams, a federal inmate appearing pro se,
appeals from the district court’s denial of relief from judgment pursuant to Fed.
R. Civ. P. 60(b)(4) and (b)(6). We deny his motion to proceed in forma pauperis
(IFP) and dismiss the appeal.
In May 2000, Mr. Williams pled guilty to a three-count indictment for
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
possession with intent to distribute cocaine base, cocaine, and marijuana. 21
U.S.C. § 841(a)(1); 18 U.S.C. § 2. He was sentenced to 216 months on each of
counts 1 and 2, and 60 months on count 3, to run concurrently, with five years of
supervised release on each of counts 1 and 2, and three years on count 3, also to
run concurrently. 1 Rawle 14-15. The district court imposed an enhanced sentence
based on Mr. Williams’ prior conviction and career offender status. U.S.S.G. §
4B1.1. Mr. Williams asserts that enhancement was improper because the statute
underlying his conviction encompassed the prior drug conviction.
In May 2008, Mr. Williams filed a motion for a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c) and certain amendments to the Sentencing
Guidelines. The district court denied the motion because he was sentenced under
the career offender guideline rather than the affected crack cocaine guideline and
we affirmed. United States v. Williams, 323 F. App’x 679, 680-81 (10th Cir.
2009). Then, after filing additional unsuccessful motions to reduce his sentence,
Mr. Williams filed a motion requesting a nunc pro tunc amended judgment
pursuant to Rules 60(b)(4) and (b)(6). The district court denied this motion
concluding that Rule 60(b) was unavailable to collaterally attack the judgment of
conviction. 1 Rawle 31. It also noted that although Rule 60(b) might be available to
attack the procedure by which a collateral attack was decided, Mr. Williams did
not file a § 2255 motion. Id.; see Gonzalez v. Crosby, 545 U.S. 524, 532-33
(2005); Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006); United
2
States v. Edge, 315 Fed. App’x 92, 95 (10th Cir. 2009). Accordingly, it denied
the motion.
On appeal, Mr. Williams argues that the district court abused its discretion
in denying his motion for various reasons and the merits of his claim. IFP Motion
at 2A; Aplt. Br. at 3-4. The district court’s conclusion is unassailably correct.
Mr. Williams has not put forth a reasoned, non-frivolous argument to the contrary
and dismissal is warranted. 28 U.S.C. § 1915(e)(2)(B)(i), (ii); McIntosh v. U.S.
Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997).
We DENY IFP, DISMISS the appeal, and ORDER Mr. Williams to pay the
full appellate filing fee.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
3