[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 13353

Non

- Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus

WAYNE BURCKS, a.k.a. Wayne Burkes,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:15

- cr

- 60330

- WPD

- 1 USCA11 Case: 22-13353 Document: 15-1 Date Filed: 02/28/2023 Page: 1 of 42 Opinion of the Court 22

- 13353

____________________
Before L AGOA , B RASHER , and B LACK , Circuit Judges.

PER CURIAM: Wayne Burcks, a federal prisoner proceeding pro se , appeals the district court’s denial of his Fed eral R ule of Crim inal P rocedure

35 motion to correct an illegal sentence for lack of jurisdiction

. He

a sserts the district court could not sua sponte raise the issue of its subject matter jurisdiction, the court erred when it denied his Rule

35 motion, and the G overnment waived any opposition to his Rule

35 motion by failing to object in the district court

. The G overnment responds by moving for summary affirmance of the district court’s order denying Burcks’s Rule 35 motion and a sserts the district court did not err in conclud ing it lacked jurisdiction to consider Burcks’s motion under both Rule 35, as it was untimely, and under 28 U.S.C. § 2255, as it was an unauthorized successive § 2255 motion.

T he G overnment is entitled to summary affirmance of the district court’s order denying Burcks’s Rule 35 motion for a lack of subject matter jurisdiction because its position is clearly co rrect as a matter of law. 1 Groendyke Transp., Inc. v. Davis , 406 F.2d 1158,

1 We review de novo whether a district court had the authority to resentence the defendant under Rule 35(a) and § 2255. United States v. Sjeklocha

, 114 F.3d 1085, 1087 (11th Cir. 1997). USCA11 Case: 22-13353 Document: 15-1 Date Filed: 02/28/2023 Page: 2 of 422

- 13353 Opinion of the Court 3

1162 (5th Cir. 1969) 2 (stating s ummary disposition is appropriate, in part, where “ the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous ”). First, Burcks’s Rule 35(a) motion was untimely as it was filed years after the district court imposed his sentence, which was far outside the 14

- day window for filing a Rule 35(a) motion. See Fed. R. Crim. P. 35(a). The timely filing of a Rule 35(a) motion is a jurisdictional prerequisite, so the district court did not err when it found it lacked jurisdiction to consider Burcks’s u ntimely Rule

35 motion. See United States v. Phillips , 597 F.3d 1190, 1196

- 97 (11th Cir. 2010) (holding the time limitation in Rule 35(a) is jurisdictional, as there is no inherent authority for a district court to modify a sentence).
Second, even const ruing Burcks’s motion as a § 2255 motion, the district court did not err in finding it lacked jurisdiction to consider it because he failed to obtain prior authorization from this Court to file a successive § 2255 motion. See Farris v. United
States , 333 F.3d 1211, 1216 (11th Cir. 2003) ( “[T] o file a second

or successive § 2255 motion, the movant must first file an application with the appropriate court of appeals for an order authorizing

2 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. USCA11 Case: 22-13353 Document: 15-1 Date Filed: 02/28/2023 Page: 3 of 44 Opinion of the Court 22

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the district court to consider it. ” ). Thus, the district court did not have the jurisdiction to consider his construed successive § 2255 motion. Id. (“ Without authorization, the district court lacks jurisdiction to consider a second or successive petition. ”). Burcks’s argument the district court erred when it sua sponte raised the issue of its subject matter jurisdiction over his
motion is without merit because the district court had the duty to ensure it had subject matter jurisdiction and it was permitted to do

so sua sponte

. See Smith v. GTE Corp. , 236 F.3d 1292, 1299 (11th Cir. 2001) (stating a federal court “ must zealously i nsure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises ,” as it is “ powerless to act beyond its statutory grant of subject matter jurisdiction ” ). Likewi se, because subject matter jurisdiction cannot be waived, the G overnment did not waive the defense by failing to raise the issue below, and Burcks’s argument to the contrary fails. See United States v. De La Garza

, 516 F.3d 1266, 1271 (11th Cir. 2008) (st ating subject matter jurisdiction cannot be waived).Therefore, we GRANT the government’s motion for summary affirmance of the district court’s denial of Burcks’s pro se Rule
35 motion and DENY as moot its motion to stay the briefing schedule.

AFFIRMED

. USCA11 Case: 22-13353 Document: 15-1 Date Filed: 02/28/2023 Page: 4 of 4