[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-10327

Non-Argument Calendar

________________________

D.C. Docket No. 0:02-cr-60200-UU-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

VICTOR GARRY BAXTER, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(November 27, 2019)

Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges

PER CURIAM:

Victor Garry Baxter appeals from the district court’s October 25, 2017 order 

Case: 19-10327 Date Filed: 11/27/2019 Page: 1 of 5 
2

denying his motion for relief from judgment, filed in his criminal case under 

Federal Rule of Civil Procedure 60(b), which challenged the imposition of a 

monetary fine as part of his sentence. Baxter did not file the notice of appeal that 

is now before us until January 16, 2019. In response to our jurisdictional question, 

however, which concerns whether the instant appeal is criminal or civil in nature, 

Mr. Baxter asserts that he filed a timely notice of appeal from the denial of his 

Rule 60(b) motion on October 29, 2017. Because we conclude that Baxter’s 

October 29, 2017, filing was not a proper notice of appeal—and, therefore, that his 

January 16, 2019, filing constitutes the operative notice of appeal—we grant the 

government’s motion to dismiss this appeal as untimely.

Federal Rule of Appellate Procedure 3(c)(1) imposes on notices of appeal a 

three-part requirement: The notice must contain the party taking the appeal, 

designate the judgment or order being appealed, and name the court to which the 

appeal is being taken. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001); 

Fed. R. App. P. 3(c)(1). These requirements are liberally construed, see Smith v. 

Barry, 502 U.S. 244, 248 (1992), just as we liberally construe pro se filings. 

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Indeed, a pro 

se notice of appeal that provides the functional equivalent of what Rule 3(c)(1) 

requires and reflects clear intent to appeal may therefore be construed as a notice 

of appeal. See Rinaldo, 256 F.3d at 1278–80 (11th Cir. 2001). 

Case: 19-10327 Date Filed: 11/27/2019 Page: 2 of 5 
3

Baxter contends that the document he filed on October 29, 2017, entitled 

“OBJECTIONS TO GOVERNMENT’S RESPONSE TO DEFENDANT’S 

MOTION FOR RELIEF FROM JUDGMENT AND ORDER PURSUANT TO 

FED. R. [CIV.] P. 60(B)(1)(6) AND/OR NOTICE OF AN APPEAL,” constitutes 

the functional equivalent of a notice of appeal. Accordingly, he concludes, he 

timely appealed the district court’s order.

We disagree. Even under a liberal construction of both pro se pleadings and 

notices of appeal, the document Baxter identified clearly falls short of Rule 

3(c)(1)’s requirements. There are two primary reasons why this is so. First, the 

filing does not designate the court to which the appeal is being taken. See Fed. R. 

App. P. 3(c)(1)(B)–(C). This failure, far from being a nitpicky criticism on our 

part, is fatal in itself—“the purpose of this requirement is to ensure that the filing 

provides sufficient notice to other parties and the courts.” Barry, 502 U.S. at 248. 

Indeed, the filing in question does not indicate whether Baxter intended to appeal 

to us or to file a successive motion for reconsideration before the district court. 

Though Baxter may have subjectively intended to appeal to us, “the notice 

afforded by a document, not the litigant’s motivation in filing it, determines the 

document’s sufficiency as a notice of appeal.” Id. at 248–49.

Second, and relatedly, the title of the document similarly fails to evince a 

clear intent to appeal. It is titled “OBJECTIONS . . . AND/OR NOTICE OF AN 

Case: 19-10327 Date Filed: 11/27/2019 Page: 3 of 5 
4

APPEAL.” The use of “and/or” identifies three possible paths that Baxter may 

have intended to take—as mentioned previously, it may indicate an intent to 

“appeal” in the form of (1) requesting the district court reconsider or (2) appealing 

to us directly, or (3) solely raising objections to the district court’s order. The 

partial indication of an intent to appeal, though certainly more than provided by the 

prospective appellant in United States v. Padgett, 917 F.3d 1312, 1316–17 (11th 

Cir. 2019), is simply insufficient under our precedent and the plain language of 

Rule 3(c)(1). Moreover, we find the previous procedural history before the district 

court instructive. Even though this filing is titled similarly to the notice of appeal 

that was accepted in Document 326 (“Notice of Appeal and/or Defendant’s 

Objections to Government’s Response Pursuant to [Fed. R. Crim. P.] 36”), that 

filing explicitly asked for the filing to be treated as a notice of appeal.

Third, the document in question failed to identify the “judgment, order or 

part thereof appealed from[.]” Fed. R. App. P. 3(c)(1)(B). Baxter only mentioned 

the government’s response to his Rule 60(b) motion, not the district court’s denial 

of Rule 60(b) relief. Depending on the context in which the document was filed, it 

is certainly possible that we could infer which order was being appealed. 

However, the context here—specifically, Baxter’s voluminous record of appeals 

and filings—cautions against such an inference.

Case: 19-10327 Date Filed: 11/27/2019 Page: 4 of 5 
5

In sum, we conclude that the document filed by Baxter on October 29, 2017, 

was not a proper notice of appeal under Rule 3(c)(1). Accordingly, we read his 

January 16, 2019, filing as his operative notice of appeal. As a result, the 

government’s motion to dismiss is due to be granted because this operative notice

is untimely. See Fed. R. App. P. 4(b)(1)(A)(i); Hamer v. Neighborhood Hous. 

Servs. of Chi., 138 S. Ct. 13, 21 (2017). Because this appeal is criminal in nature, 

we are bound to apply the time limit set forth in Rule 4(b)(1)(A)(i). See United 

States v. Lopez, 562 F.3d 1309, 1312–14 (11th Cir. 2009).

Accordingly, the government’s motion to dismiss is GRANTED and this 

appeal is DISMISSED.

Case: 19-10327 Date Filed: 11/27/2019 Page: 5 of 5