USA v. Jeffrey Spivack

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13133
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY SPIVACK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80016-KAM-1
____________________
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2 Opinion of the Court 23-13133
Before J ORDAN, J ILL PRYOR , and NEWSOM , Circuit Judges.
PER CURIAM:
This appeal is DISMISSED, sua sponte, for lack of jurisdic-
tion. Jeffrey Spivack appeals from the district court’s September 7,
2023, order construing his motion to dismiss as a 28 U.S.C. § 2255
motion to vacate sentence. That order is not final and appealable,
however, because it did not end the litigation on the merits in the
district court. See 28 U.S.C. § 1291; Acheron Cap., Ltd. v. Mukamal,
22 F.4th 979, 986 (11th Cir. 2022) (stating that a final order ends the
litigation on the merits and leaves nothing for the court to do but
execute its judgment). The district court has not ruled on the re-
characterized § 2255 motion or entered a judgment in the § 2255
proceedings.
Additionally, the district court’s September 7, 2023, order is
not effectively unreviewable on appeal from a final order resolving
the case on the merits. Plaintiff A v. Schair, 744 F.3d 1247, 1252-53
(11th Cir. 2014) (explaining that a ruling that does not conclude the
litigation may be appealed under the collateral order doctrine if it,
inter alia, is “effectively unreviewable on appeal from a final judg-
ment”).
No petition for rehearing may be filed unless it complies
with the timing and other requirements of 11th Cir. R. 40-3 and all
other applicable rules.
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