United States of America v. Mark Edward Grapes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7612
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARK EDWARD GRAPES,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:05-cr-00011-JPB-JSK-2)
Submitted: January 13, 2011 Decided: January 21, 2011
Before MOTZ, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Edward Grapes, Appellant Pro Se. Thomas Oliver Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia;
Michael Stein, Assistant United States Attorney, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mark Edward Grapes pled guilty to one count of
distribution of methamphetamine, in violation of 21 U.S.C.A.
§ 841(b)(1)(C) (West 2006 & Supp. 2010), and one count of using
and carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006). The district court sentenced Grapes in October 2006 to
eighty-seven months’ imprisonment on the methamphetamine count
and a consecutive term of sixty months’ imprisonment on the
firearm count, for a total term of 147 months’ imprisonment. In
October 2010, Grapes filed a motion, styled as a Fed. R. Civ. P.
60(b) motion, in which he requested that the district court
amend the judgment of conviction and order that the two
imprisonment terms run concurrently to one another. The
district court denied the motion, and Grapes appeals.
The Federal Rules of Civil Procedure do not provide a
vehicle by which Grapes may challenge his criminal judgment.
See United States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999)
(stating that a criminal defendant cannot challenge orders
entered in his criminal case using Fed. R. Civ. P. 60(b));
United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998)
(per curiam) (holding that a defendant cannot challenge criminal
forfeiture orders under the Federal Rules of Civil Procedure).
Nor could Grapes have properly sought reconsideration under the

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Federal Rules of Criminal Procedure. See United States v.
Goodwyn, 596 F.3d 233, 235 (4th Cir.), cert. denied, 130 S. Ct.
3530 (2010) (holding that Fed. R. Crim. P. 35 authorizes
reconsideration within fourteen days only to correct
arithmetical, technical, or other clear error).
We therefore affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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