USA v. Winsky Mondestin

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12380
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WINSKY MONDESTIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:11-cr-80078-DMM-2
____________________
USCA11 Case: 23-12380 Document: 45-1 Date Filed: 05/01/2024 Page: 1 of 4

-- 1 of 4 --

2 Opinion of the Court 23-12380
Before ROSENBAUM, G RANT, and A NDERSON , Circuit Judges.
PER CURIAM:
The appellant, Winsky Mondestin, is a federal prisoner serv-
ing a total 240-month sentence for his role in a July 2006 armed
robbery of an armored van in Boca Raton, Florida. In 2023,
roughly eight years after his convictions and total sentence became
final, he filed a motion demanding either proof that his indictment
had been returned in open court or dismissal of the indictment for
lack of jurisdiction. The district court denied the motion, noting
that the “[s]uperseding [i]ndictment was returned in open court by
grand jury on July 12, 2011.” Mondestin appeals, and the govern-
ment moves for summary affirmance. We grant that motion and
affirm.
Summary disposition of an appeal is “warranted where,
among other circumstances, . . . the result is clear as a matter of
law so that there can be no substantial question as to the outcome,”
Brown v. United States, 942 F.3d 1069, 1076 n.6 (11th Cir. 2019), or
where “the appeal is frivolous,” Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1161, 1162 (5th Cir. 1969).
A defendant may move to dismiss an indictment for lack of
jurisdiction “at any time while the case is pending.” Fed. R. Crim.
P. 12(b)(2). A case is no longer “pending” within the meaning of
Rule 12 after we issue our mandate on direct appeal. United States
v. Elso, 571 F.3d 1163, 1166 (11th Cir. 2009); see also United States v.
Diveroli, 729 F.3d 1339, 1341–44 (11th Cir. 2013) (discussing Elso and
USCA11 Case: 23-12380 Document: 45-1 Date Filed: 05/01/2024 Page: 2 of 4

-- 2 of 4 --

23-12380 Opinion of the Court 3
concluding that a district court was divested of jurisdiction to con-
sider a motion to dismiss while a defendant’s direct appeal was
pending). In Elso, six months after we affirmed the defendant’s con-
victions and sentences on direct appeal and issued our mandate,
the defendant moved to dismiss his indictment for lack of subject-
matter jurisdiction as to one conviction. 571 F.3d at 1165. We af-
firmed the denial of the defendant’s motion because his case ended
and “was no longer pending.” Id. at 1166.
Summary affirmance is appropriate here because the gov-
ernment is clearly correct as a matter of law. There is no substan-
tial question whether the district court erred in denying Mondes-
tin’s post-conviction motion for proof that his indictment was re-
turned in open court or to dismiss the indictment. See Brown, 942
F.3d at 1076 n.6. Mondestin’s convictions and total sentence have
been final since 2015, when we issued our mandate affirming his
sentences and the Supreme Court denied certiorari.1 Because his
case “was no longer pending” under Rule 12(b) when Mondestin
filed his post-conviction motion, the district court did not err in
denying the motion. See Elso, 571 F.3d at 1165.
1 In 2013, on direct appeal, we vacated one count of conviction under 18
U.S.C. § 924(c)(1)(A), affirmed Mondestin’s convictions on the remaining four
counts, and remanded for further proceedings. United States v. Mondestin, 535
F. App’x 819, 824 (11th Cir. 2013), cert. denied, 571 U.S. 1183 (2014). After our
mandate issued, the district court resentenced Mondestin on the remaining
counts to a total term of 240 months in prison. We issued our mandate af-
firming the sentence in 2015, see United States v. Aurelhomme, 598 F. App’x 645
(11th Cir. 2015), and the Supreme Court denied review, see 572 U.S. 992 (2015).
USCA11 Case: 23-12380 Document: 45-1 Date Filed: 05/01/2024 Page: 3 of 4

-- 3 of 4 --

4 Opinion of the Court 23-12380
Because the government’s position is clearly correct as a
matter of law, we GRANT the motion for summary affirmance.2
AFFIRMED.
2 We DENY Mondestin’s motion for default judgment. The government
timely filed its motion for summary affirmance, which stayed the briefing
schedule. See 11th Cir. R. 31-1(c).
USCA11 Case: 23-12380 Document: 45-1 Date Filed: 05/01/2024 Page: 4 of 4

-- 4 of 4 --