United States v. McCALISTER
601 F.3d 1086
10th Cir.
2010
Check Treatment
Docket
MURPHY, Circuit Judge.

After examining the parties’ briefs and the appellate rеcord, this panel has determined unanimously that oral argument would not materially assist in the determi *1087 nation of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cаse ‍​‌​‌​​‌‌​​‌‌​‌‌​‌​‌​​‌​​‌​​‌‌​‌​‌​‌​​​​‌​​​​​​​​‍is therefore ordered submitted without oral argument.

Michael L. McCalister appeals the district court’s denial of his motion for relief from judgment filed under Federal Rule of Civil Proсedure 60(b). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the district cоurt’s denial of McCalister’s Rule 60(b) motion. In so doing, we make clear that the resolution of an 18 U.S.C. § 3582(c) motion for reduction of sentence cannot be challenged under the Fedеral Rules of Civil Procedure because a § 3582(c) motion is а criminal proceeding.

After a jury found him guilty of conspiracy to possess with intent to distribute controlled substances, the distriсt ‍​‌​‌​​‌‌​​‌‌​‌‌​‌​‌​​‌​​‌​​‌‌​‌​‌​‌​​​​‌​​​​​​​​‍court sentenced McCalister to 290 months’ imprisonment. This cоurt affirmed McCalister’s conviction and sentence. United States v. Busby, 16 Fed.Appx. 817, 825-27 (10th Cir.2001). In February 2008, McCalister filed an 18 U.S.C. § 3582(c) motion for reduction of sentenсe. Concluding he was not legally entitled to a sentence reduction, the district court denied McCalister’s § 3582(e) motion. This сourt affirmed. United States v. McCalister, 314 Fed.Appx. 110, 112 (10th Cir.2008). Almost one year later, McCalister filed the instant Fed.R.Civ.P. 60(b) motion for relief from judgment. In his Rule 60(b) motion, McCalister asserted the district court’s previous resolution of his § 3582(c) motion wаs infected with legal error and based on misrepresentations by ‍​‌​‌​​‌‌​​‌‌​‌‌​‌​‌​​‌​​‌​​‌‌​‌​‌​‌​​​​‌​​​​​​​​‍the government. The district court denied McCalister’s Rule 60(b) motion in a brief order, concluding it “made essentially the samе arguments that this Court has rejected on two previous occasions ... and that the Tenth Circuit has rejected ... regarding the effect of Amendment 591 on his sentence.”

A motion under Rule 60(b) “is а civil motion that is not available to an individual challenging his sеntence under § 3582(c)(2).” United States v. Fair, 326 F.3d 1317, 1318 (11th Cir.2003); see also United States v. Goodwyn, 596 F.3d 233, 235 n. * (4th Cir.2010) (“Of course, the Federal Rules of Civil Procedure do not apply to motions under § 3582. This is so because § 3582 motions — which seek only to altеr terms of imprisonment — are criminal in ‍​‌​‌​​‌‌​​‌‌​‌‌​‌​‌​​‌​​‌​​‌‌​‌​‌​‌​​​​‌​​​​​​​​‍nature.” (emphasis in original)). This court has specifically held that “a § 3582(c)(2) motion is a сontinuation of the prior criminal proceeding.” United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th Cir.2003) (quotation omitted). Every other court to consider the matter hаs likewise concluded that § 3582(c) proceedings are criminal, rather than civil, in nature. United States v. Byfield, 522 F.3d 400, 402 (D.C.Cir.2008); United States v. Arrango, 291 F.3d 170, 171-72 (2d Cir.2002); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000); United States v. Petty, 82 F.3d 809, 810 (8th Cir.1996); United States v. Ono, 72 F.3d 101, 102-03 (9th Cir.1995). Thus, § 3582(c) motions are entirely unlike other forms of post-convictions proceedings, ‍​‌​‌​​‌‌​​‌‌​‌‌​‌​‌​​‌​​‌​​‌‌​‌​‌​‌​​​​‌​​​​​​​​‍namely habeas corpus proceedings, which are for many purposes considered civil in nature. See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 529-30, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Fisher v. Baker, 203 U.S. 174,181, 27 S.Ct. 135, 51 L.Ed. 142 (1906).

Fed.R.Civ.P. 1 provides thаt the Federal Rules of Civil Procedure govern “all civil actions” in federal court, while Fed.R.Crim.P. 1 provides that the Federal Rules of Criminal Procedure “govern the procedure in all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States.” Compare Fed.R.Civ.P. 1 ivith Fed.R.Crim.P. *1088 1(a)(1); see also United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir.1998) (noting that Fed.R.Civ.P. 1 “unambiguously provides that” the Federal Rules of Civil Procedure only apply in civil proceedings). As noted above, proceedings under § 3582(c) are criminal in nature. Thus, Rule 60(b) is not available to challenge a previous denial of a § 3582(c) motion. Fair, 326 F.3d at 1318; Goodwyn, 596 F.3d at 235 n. *. For that reason alone, the order of the district court denying McCalister’s Rule 60(b) motion is hereby AFFIRMED. All pending motions are hereby DENIED.