United States v. Garland Miller ( 2018 )

Case: 18-30306 Document: 00514732126 Page: 1 Date Filed: 11/21/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30306 FILED
Summary Calendar November 21, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GARLAND D. MILLER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:07-CR-50032-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Garland D. Miller, former federal prisoner # 13658-035, appeals the
district court’s denial of his Federal Rule of Criminal Procedure Rule 35(a)
motion. Miller filed the motion to challenge the restitution order resulting
from his 2008 convictions for tax evasion. Miller has also filed a separate
motion requesting this court to overturn or correct his restitution order.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-30306 Document: 00514732126 Page: 2 Date Filed: 11/21/2018
No. 18-30306
The district court did not have the authority to consider Miller’s Rule
35(a) motion, because the motion was untimely and the time limit contained
in Rule 35 is jurisdictional. See FED. R. CRIM. P. 35(a) (2008); United States v.
Lopez, 26 F.3d 512, 518-21 (5th Cir. 1994). To the extent that Miller seeks
relief pursuant to a petition for writ of error coram nobis, we and the district
court have previously denied Miller relief based on the same grounds he raises
in the instant proceeding. See United States v. Miller, 705 F. App’x 325, 325-
26 (5th Cir. 2017). To the extent that Miller seeks relief pursuant to Federal
Rule of Civil Procedure 60(b), such a motion does not apply in criminal
proceedings. See FED. R. CIV. P. 1 (“These rules govern the procedure in all
civil actions . . . .”). Accordingly, the judgment of the district court is
AFFIRMED. For the same reasons, Miller’s motion to overturn or correct his
restitution order is DENIED.
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