USA v. Adrian Tremayne Wilson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12714
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADRIAN TREMAYNE WILSON,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:16-cr-60212-RS-1
____________________
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2 Opinion of the Court 23-12714
Before WILLIAM PRYOR , Chief Judge, and N EWSOM and ANDERSON,
Circuit Judges.
PER CURIAM:
Adrian Wilson appeals pro se the denial of two post-convic-
tion motions to dismiss his indictment for lack of jurisdiction. Fed.
R. Crim. P. 12(b)(2). The United States moves for summary affir-
mance. We grant that motion and affirm.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a
matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the
appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1161, 1162 (5th Cir. 1969).
We review de novo questions of subject matter jurisdiction.
United States v. Wilson, 979 F.3d 889, 902 n.6 (11th Cir. 1992).
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
concluding that a district court was divested of jurisdiction to con-
sider a motion to dismiss while a defendant’s direct appeal was
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23-12714 Opinion of the Court 3
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 because the United
States is clearly correct as a matter of law. There is no substantial
question whether the district court erred in denying Wilson’s
post-conviction motions to dismiss his indictment for lack of juris-
diction. See Groendyke Transp., Inc., 406 F.2d at 1162. Wilson’s case
“was no longer pending” under Rule 12(b) when we issued our
mandate affirming his conviction and sentence on direct appeal.
Elso, 571 F.3d at 1165. The district court did not err.
Because the position of the United States is clearly correct
as a matter of law, we grant the motion for summary affirmance.
Groendyke Transp., Inc., 406 F.2d at 1162.
AFFIRMED.
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