United States v. Larry Andrews

USCA11 Case: 21-10645 Date Filed: 12/09/2021 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-10645 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LARRY ANDREWS, a.k.a. Little Larry, a.k.a. "L",

Defendant-Appellant. USCA11 Case: 21-10645 Date Filed: 12/09/2021 Page: 2 of 4 2 Opinion of the Court 21-10645

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:12-cr-00175-TJC-JBT-1 ____________________

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM and BRASHER, Circuit Judges. PER CURIAM: Larry Andrews, a federal prisoner, appeals pro se the sua sponte dismissal of his motion for relief from his criminal judg- ment. See Fed. R. Civ. P. 60(b)(6). The United States moves for summary affirmance and to stay the briefing schedule. We grant the motion for summary affirmance and deny as moot the motion to stay the briefing schedule. Andrews moved for relief from the sentence he received five years earlier for conspiring to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and for conspiring to commit money laundering, 18 U.S.C. § 1956(a)(1)(B)(i), (h). Andrews ar- gued that United States v. Whitsett, 802 F. App’x 526 (11th Cir. 2020), established that the district court erred by enhancing his sen- tence for possessing a dangerous weapon, U.S.S.G. § 2D1.1(b)(1). Andrews argued that he was challenging a “procedural error” and that he was “not seeking relief on . . . [a] § 2255 petition.”

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The district court sua sponte dismissed Andrews’s motion. The district court ruled that Rule 60(b) was a civil rule of procedure inapplicable to Andrews’s criminal proceeding; he had expressly disclaimed that he sought to vacate his sentence, see 28 U.S.C. § 2255; the deadline to move to correct his sentence had long since expired, see Fed. R. Crim. P. 35; and he did not qualify for a reduc- tion of his sentence, see 18 U.S.C. § 3582. The district court also ruled that Andrews’s case was distinguishable from Whitsett and that Whitsett announced no new rule that would permit Andrews to file a second or successive motion to vacate, see 28 U.S.C. § 2255(h). Andrews filed a motion to reconsider, which the district court denied. Summary affirmance is appropriate because the decision of the district court “is clearly right as a matter of law so that there [is] no substantial question as to the outcome of the case.” See Groen- dyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Dis- trict courts lack the inherent authority to modify a defendant’s sen- tence and “may do so only when authorized by a statute or rule.” United States v. Puentes, 803 F.3d 597, 606 (11th Cir. 2015). An- drews does not dispute that he sought relief exclusively based on Rule 60(b) and that he was not entitled to any other form of relief. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). But “Rule 60(b) simply does not provide [Andrews an avenue] for relief from [the] judgment in . . . [his] criminal case . . . .” United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).

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Because the position of the United States is clearly right re- garding the outcome of this appeal, we GRANT its motion to sum- marily affirm and DENY AS MOOT the accompanying motion to stay the briefing schedule. We also DENY the government’s mo- tion to dismiss this appeal as untimely. AFFIRMED.