United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL UNITED STATES DISTRICT JUDGE.
Fed.R.Civ.P. 60(b), the pro se defendant, Roger Sedlak, has
filed a motion (Doc. 493) to vacate his sentence. He argues
in light of Dean v. United States, __U.S.__, 137
S.Ct. 1170 (2017), that we failed to consider the effect of
the sentence we imposed on his aggravated-identity-theft
conviction under 18 U.S.C. § 1028A(a)(1) on the
sentences we imposed on offenses that would not count as
predicate offenses for the § 1028A(a)(1) conviction.
Instead, we decided what the appropriate sentences would be
for those other offenses and then simply ran the
twenty-four-month mandatory minimum sentence for the §
1028A(a)(1) conviction consecutive to the other sentences
imposed. Defendant also argues that the § 1028A(a)(1)
conviction is invalid under Alleyne v. United
States, __U.S.__, 133 S.Ct. 2151, 186 L.Ed.2d 314
dismiss the motion for lack of jurisdiction. It is really a
second or successive motion under 28 U.S.C. § 2255. As
such, Defendant needs the approval of the court of appeals
before he can file it.
pled guilty to the following counts in a superseding
indictment: (1) Count 1, conspiracy under 18 U.S.C. §
371 to violate 18 U.S.C. § 2421, interstate
transportation with the intent to engage in prostitution, and
to violate 18 U.S.C. § 2422(a), persuading, inducing,
coercing and enticing interstate travel to engage in
prostitution; (2) Count 3, a substantive violation of section
2422(a); (3) Count 5, a violation of 18 U.S.C. §
1028A(a)(1), aggravated identity theft; and (4) Count 18, a
violation of 18 U.S.C. § 1956(a)(1)(B)(i), money
7, 2011, Defendant was sentenced to an aggregate term of 145
months' imprisonment, 121 months on counts 1, 3, and 18,
to be served concurrently, and twenty-four months on Count 5,
to be served consecutively to the other terms. His conviction
and sentence were affirmed on direct appeal. See United
States v. Sedlak, 529 F. App'x 253 (3d Cir.
2013)(nonprecedential). On March 10, 2015, we denied a motion
under 28 U.S.C. § 2255 to vacate the conviction and
sentence. United States v. Sedlak, 2015 WL 1033981
(M.D. Pa.). Sedlak's application for a certificate of
appealability in regard to the 2255 motion was denied by the
Third Circuit. United States v. Sedlak, C.A. No.
15-2446 (3d Cir. Feb. 8, 2016). Thereafter, Defendant made
various filings attacking his conviction and sentence,
invokes Fed.R.Civ.P. 60(b) to vacate his criminal sentence.
But Defendant cannot rely on that Rule as “the Federal
Rules of Civil Procedure [do] not apply to criminal
proceedings.” United States v. Birt, 537 F.
App'x 34, 35 (3d Cir. 2013)(nonprecedential)(a Rule 60(b)
motion cannot be used to challenge an order denying a motion
under 18 U.S.C. § 3582); United States v. Fair,
326 F.3d 1317, 1318 (11th Cir. 2003).
attacking a conviction or sentence must generally be filed
under 28 U.S.C. § 2255. See Massey v. United
States, 581 F.3d 172, 174 (3d Cir. 2009)(“A motion
to vacate sentence pursuant to 28 U.S.C. § 2255 is the
means to collaterally challenge a federal conviction or
sentence”). However, Defendant has already had one 2255
motion adjudicated and cannot file another one without leave
of the Third Circuit. See 28 U.S.C. § 2255(h).
He is free to seek such leave from the court of appeals.
that federal courts have no inherent authority to modify a
sentence at anytime. See Dillon v. United States,
560 U.S. 817, 819, 130 S.Ct. 2683, 2687, 177 L.Ed.2d 271
(2010)(“A federal court generally ‘may not modify
a term of imprisonment once it has been
imposed.'”)(quoting 18 U.S.C. § 3582(c));
McMillan v. United States, 257 F. App'x 477, 479
(3d Cir. 2007)(nonprecedential)(“We note that, as a
general matter, a court cannot modify a term of imprisonment
after it has been imposed without specific
authorization.”)(citing United States v.
DeLeo, 644 F.2d 300, 301 (3d Cir. 1981)). Defendant
points to no authority that would allow us to adjudicate his
current challenge to his sentence.
issue an appropriate order.