IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10625

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ADRIAN JIMINEZ-GARCIA, also known as Adrian Jimenez-Garcia,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Adrian Jiminez-Garcia, federal prisoner # 39740-177, appeals the 

district court’s denial of his Federal Rule of Civil Procedure 60(b)(4) motion for 

relief from the 2010 judgment convicting him of, and sentencing him for, bank 

robbery. The district court denied Jiminez-Garcia’s motion on the ground that, 

inter alia, the Federal Rules of Civil Procedure do not apply in criminal 

proceedings. On appeal, Jiminez-Garcia contends that his judgment is void 

because it reflected a sentence that incorporated guideline enhancements with 

which he was not charged in his indictment.

We have a continuing duty to consider, sua sponte, if necessary, the basis 

of the district court’s and our jurisdiction. See Solsona v. Warden, F.C.I., 821 

United States Court of Appeals

Fifth Circuit

FILED

March 13, 2020

Lyle W. Cayce

Clerk

 Case: 19-10625 Document: 00515343956 Page: 1 Date Filed: 03/13/2020
No. 19-10625

2

F.2d 1129, 1132 n.2 (5th Cir. 1987); Mosley v. Cozby, 813 F.2d 659, 660 (5th 

Cir. 1987). Although Jiminez-Garcia filed his Rule 60(b) motion after the 

denial of a prior 28 U.S.C. § 2255 motion, the district court treated it as arising 

solely in his criminal proceeding and did not consider whether Jiminez-Garcia 

was attempting to file what amounted to an unauthorized successive § 2255 

motion. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005); United States v. 

Hernandes, 708 F.3d 680, 681-82 (5th Cir. 2013). The district court did not

conduct this threshold determination, and therefore the district court did not 

ensure its jurisdiction over Jiminez-Garcia’s motion. See Hernandes, 708 F.3d 

at 681–82; 28 U.S.C. § 2253(c). When a district court “fails to explicitly decide 

[an] issue” that weighs on the district court’s jurisdiction, the “better solution 

is to remand the case to the district court for determination of the jurisdictional 

questions” rather than dismissing the matter altogether. Getty Oil Corp., a 

Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1260 n.8 (5th Cir. 

1988); Smith v. Bank of Am. Corp., 605 F. App’x 311, 312–15 & n.5 (5th Cir. 

2015) (vacating judgment and remanding for “district court to determine its 

own jurisdiction in the first instance”). 

Subject to a narrow exception that is inapplicable in this case, a

certificate of appealability (COA) is required to appeal the denial of a Rule 

60(b) motion filed after the denial of a § 2255 motion. See Ochoa Canales v. 

Quarterman, 507 F.3d 884, 888 (5th Cir. 2007); § 2253(c). The district court 

must make the first judgment as to whether a COA should issue. Rule 11(a), 

RULES GOVERNING § 2255 PROCEEDINGS; see also Black v. Davis, 902 F.3d 541, 

543–45 (5th Cir. 2018) (§ 2254 case), cert. denied, 2020 U.S. LEXIS 372 

(Jan. 13, 2020). Because the district court has not ruled on whether JiminezGarcia should be granted a COA to challenge the denial of his Rule 60(b) 

motion, this court lacks appellate jurisdiction to consider the district court’s 

 Case: 19-10625 Document: 00515343956 Page: 2 Date Filed: 03/13/2020
No. 19-10625

3

denial of Jiminez-Garcia’s Rule 60(b) motion. See Black, 902 F.3d at 543–53.

Although “we are without jurisdiction unless the district court either granted 

or denied a COA” and although “we are foreclosed from treating . . . [JiminezGarcia’s] request for relief in our court as a COA,” we can still remand to the 

district court to conduct the threshold determination of whether JiminezGarcia’s Rule 60(b) motion amounts to an unauthorized successive § 2255 

motion. Crutsinger v. Davis, 929 F.3d 259, 266 (5th Cir. 2019). 

Accordingly, the district court’s judgment denying Jiminez-Garcia’s Rule 

60(b) motion is VACATED. This case is REMANDED for the district court to 

determine in the first instance whether it has jurisdiction to consider JiminezGarcia’s Rule 60(b) motion and whether it should issue a COA. See Black, 929 

F.3d at 543–45; Getty Oil Corp., 841 F.2d at 1260 n.8.

 Case: 19-10625 Document: 00515343956 Page: 3 Date Filed: 03/13/2020