USA v. Larry Andrews

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
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.
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2 Opinion of the Court 21-10645
____________________
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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21-10645 Opinion of the Court 3
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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4 Opinion of the Court 21-10645
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.
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