United States v. Johnny Brett Gregory , 546 F. App'x 933 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14255
Non-Argument Calendar
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D.C. Docket No. 4:06-cr-00010-RLV-WEJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY BRETT GREGORY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(December 6, 2013)
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Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Johnny Gregory, a federal prisoner, appeals pro se the denial of his
postconviction motions for the return of his firearm, see Fed. R. Crim. P. 41(g),
and for the dismissal of his indictment. The district court denied both motions.
Although we affirm the denial of Gregory’s motion for the return of his firearm,
we vacate the denial of Gregory’s motion to dismiss his indictment and remand for
the district court to dismiss the motion for lack of subject matter jurisdiction.
Gregory also moves for sanctions against counsel for the government and for
reassignment of his case to a different judge on remand, but we deny both motions.
In 2006, Gregory entered an agreement to plead guilty to possessing with
intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), and possessing a
firearm in furtherance of a crime of drug trafficking, 18 U.S.C. § 924(c)(1)(A). In
his written plea agreement, Gregory “agreed[] to forfeit all of his rights, title and
interest in . . . [his] Beretta 9-millmeter handgun, serial number SZ005675”;
“voluntarily abandon[ed] all right, title and interest in and right and claims to the . .
. firearm”; and “voluntarily withdr[e]w[] the claim of ownership he made to the
property.” The district court accepted Gregory’s pleas of guilty and ordered that
he forfeit his interest in the firearm.
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In 2007, Gregory moved to vacate his sentence. Gregory argued that his
conviction for possessing a firearm was invalid because there was no evidence to
prove that he used a firearm in relation to his drug trafficking. See 28 U.S.C.
§ 2255. The district court denied the motion. Gregory appealed, but he later
dismissed the appeal.
Gregory then moved for an order that the government produce inventory
records of his firearm, which had been seized from him in 2005 when deputies of
the Sheriff’s Office of Whitfield County and agents of the Federal Bureau of
Investigation executed a warrant to search Gregory’s residence. See 41 C.F.R.
§ 128-50.101. Gregory alleged that the firearm was in the possession of the
government, although it had, in 2008, obtained an order allowing it to destroy the
firearm, see 28 U.S.C. § 1651(a). The district court construed Gregory’s motion as
seeking the return of his firearm. See Fed. R. Crim. P. 41(g). The government
responded that it did not have to comply with section 128-50.101 because it did not
seize Gregory’s firearm; nevertheless, the government attached to its response
copies of the inventory lists provided by the Sheriff’s Office.
Gregory next moved to strike the response of the government and to dismiss
his indictment “due to no subject matter jurisdiction.” Gregory sought relief on
two grounds: (1) the district court lacked jurisdiction to enter the order allowing
the destruction of the firearm because the government had commenced its action
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for forfeiture of his firearm more than 120 days after its seizure in 2005, see 18
U.S.C. § 924(d)(1); and (2) “the government had no jurisdiction over the alleged
grand jury indictment” and “jurisdiction [had been] lacking personal and subject
matter throughout the entire criminal action” because the firearm “[n]ever had been
in the federal governments domain.”
The district court denied Gregory’s motions. The district court ruled that the
government was not obliged to provide Gregory an inventory list, and, in any
event, Gregory, “as a convicted felon, [did] not have possessory interest in the
handgun pursuant to the terms of his plea agreement” and the district court had
already “issued an order authorizing the destruction of the firearm in question.”
The district court also ruled that Gregory failed to provide “a valid reason to strike
the government’s response” or to cite “any valid factual or legal grounds for
dismissing [his] indictment.” With respect to Gregory’s argument that the order
allowing the destruction of the firearm was illegal, the district court ruled that
Gregory was “ignor[ing] the fact that [he] voluntarily entered into a plea
agreement, wherein he agreed to forfeit the firearm that was seized.” The district
court found “unavailing” Gregory’s jurisdictional arguments and instructed
Gregory to raise “challenge[s] [to] his indictment or any other issue related to his
conviction or plea agreement . . . via an appeal to the Eleventh Circuit.”
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Our review is governed by two standards of review. We review de novo
“questions of law dealing with a district court’s denial of a motion for return of
seized property,” and we review related findings of fact for clear error. United
States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005). We are “obligated to inquire
into subject-matter jurisdiction sua sponte whenever it may be lacking” and review
that issue de novo. Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007)
(internal quotation marks and citation omitted).
The district court correctly denied Gregory relief to the extent that he sought
the return of his firearm. “[F]or an owner of property to invoke Rule 41(g), he
must show that he had a possessory interest in the property seized by the
government.” Howell, 425 F.3d at 974. As Gregory admitted in his motion to
dismiss, he forfeited voluntarily his ownership rights in the firearm as a term of his
plea agreement. Gregory argues that the district court should have granted his
motion for inventory records, but that motion was rendered moot when the
government gave Gregory a copy of the inventory list produced by the Sheriff’s
Office. See United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).
The district court lacked subject matter jurisdiction to consider Gregory’s
motion to dismiss his indictment. Gregory’s motion to dismiss was the functional
equivalent of a motion to vacate. Because Gregory did not obtain leave from this
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Court to file a successive motion, see 18 U.S.C. § 2255(h), Gregory’s motion to
dismiss was subject to dismissal for lack of jurisdiction.
Gregory moves for sanctions against counsel for the government and for
reassignment of his case to a different judge on remand, but his motions lack merit.
Gregory requests that we impose sanctions against opposing counsel for obtaining
an extension of time to file their brief, but sanctions are warranted only when
conduct “multiplies the proceedings . . . unreasonably and vexatiously,” 28 U.S.C.
§ 1927. Gregory also requests that we reassign his case, but Gregory’s
disagreement with adverse rulings does not give us reason to doubt the impartiality
of the district court judge.
We AFFIRM the denial of Gregory’s motion for return of his firearm, but
we VACATE the denial of his motion to dismiss and REMAND for the district
court to dismiss that motion for lack of subject matter jurisdiction. We DENY
Gregory’s motions for sanctions and reassignment.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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