United States v. Ismael Rico ( 2020 )

Case: 19-10812 Document: 00515338842 Page: 1 Date Filed: 03/10/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10812 March 10, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ISMAEL RICO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-152-4
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Ismael Rico, federal prisoner # 49569-177, appeals the district court’s
denial of his Federal Rule of Civil Procedure 60(b)(4) motion for relief from the
2016 judgment convicting him of, and sentencing him for, conspiracy to possess
with the intent to distribute 50 grams or more of a mixture and substance
containing a detectable amount of methamphetamine. Among the grounds on
which the district court denied Rico’s motion was that the Federal Rules of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-10812 Document: 00515338842 Page: 2 Date Filed: 03/10/2020
No. 19-10812
Civil Procedure do not apply in criminal proceedings. On appeal, Rico
contends that his judgment is void because it imposed “punishment for
criminal conduct” (i.e., Guidelines enhancements) that was not part of the
“indictment charges” to which Rico pled guilty and because the sentencing
court lacked subject matter jurisdiction.
Rule 60 does not apply in criminal proceedings. See United States v.
O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999); FED. R. CIV. P. 1. Thus, the district
court did not err in denying Rico’s Rule 60(b)(4) motion on this basis. Moreover,
because Rico’s Rule 60(b)(4) motion sought to challenge his conviction and
sentence on grounds that he could have raised in his prior 28 U.S.C. § 2255motion, the motion is properly construed as an unauthorized successive
Section 2255 motion, which the district court lacked jurisdiction to consider.
See 28 U.S.C. § 2244(b)(3)(A); § 2255(h); Gonzalez v. Crosby, 545 U.S. 524, 531–
32 (2005); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
We can uphold “the district court’s judgment on any grounds supported
by the record.” Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992). We
therefore AFFIRM. Rico’s motion for release under Federal Rule of Appellate
Procedure 9(a) is DENIED.
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