### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 8, 2003 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-12229 Non-Argument Calendar

________________________ D.C. Docket N

o. 96-00089-CR-FT

M-24 UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus HARVEY KEITH FAIR, Defendant-Appe llant.

__________________________ Appeal from t

he United States D

istrict Court for t

he Middle District of

Florida

_________________________ (April 8, 2003) Before CARNE S, HULL and W ILSON, Circ

uit Judges. PER CURIAM:1 Section 3582(c)(2) allows for the modification of a defendant’s sentence based on

subsequent chang

es in the sentenci

ng guidelines. Appellant Harvey K eith Fair, a pro se federal prisoner, appeals the district court’s denial of his mot ion pur suant to Federal Rule of Civil Procedure 60(b)(4). After revie w, we af firm. Fair pled guilty to one count o f possessing a firea rm while being

a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e) . After fili ng an unsuccessful § 2255 mo tion, Fair sought to c orrect alleged de ficiencies in his se ntence via 18 U.S.C. § 3582(c)(2). 1 The district court denied Fair’s § 3 582(c)(2) moti on and Fair appealed. The merits of

Fair’s underly

ing § 3582(c)(2) m

otion are the su

b ject of a separate appeal,

number 03-11211,

which remain

s pending. After filing his notice of

appeal as to his § 3582(c)(2) motion, Fair filed another motion pursuant to Rule 60(b) (4) that mere ly reiterated his

§ 3582(c)(2) claim

s. The district court denied the Rule 60(b)( 4) motion and Fai r again appealed. The only issue in this appeal is the denial of Fair’ s Rule 60(b)(4) m otion. Although there are considerable deficiencies in Fa ir’s argume

nts on the merits,
we need not discuss thembecause Rule 60(b) (4) is a civil m otion that is not availa

ble to an individual challenging his sentence under § 3582(c)(2). Unlike forms of post-conviction relief which has been deemed civil in nature,
see , e.g. , Fisher v. Baker , 203 U.S. 174, 181 (1906) ( habeas co rpus proceedings),every

circuit court which has address § 3582(c)(2) has determined that it is criminal in nature and theref

ore covered by rules applying to crimi nal cases, not civil cases. See , e.g. , United States v. Espinosa-Talamantes , 319 F.3d 1245, 1246-47 (10th Cir. 200 3) (concluding civil Rul e 4(a)(1)(B) f

or time to appea

l does not apply to § 3582(c)(2)); United States v. A rrango , 291 F.3d 170, 171-72 (2d Cir. 2002) (same); UnitedStates v. Alvarez , 210 F.3d 309, 310 (5th Cir. 20 00) (same); United States v. P ett y , 82 F.3d 809, 810 (8th C ir. 1996) (sam

e); United States v. O

no , 72 F.3d 101, 102-03 (9th Cir. 1995) (same). These circuit cour

ts have all held that a

§ 3582(c)(2) m

otion is not a civil postconviction

action, but rather a continuation of a criminal case. The courts based t heir decisions on the fact

that § 3582 “gover

ns the imposition a

nd sub sequen t modific ation of

a sentence of imprisonment, and it refers to the statutes and rules governing

the imposition of sentences.” A lvarez , 210 F.3d at 310 (int ernal quotations and citation omitted). We agree with our sister circuits ’ reasoning and adopt it as our
own. In United States v. M osavi , 138 F.3d

1365 (11th Cir. 199 8), we addressed the applicability

of Rule 60(b) in the c

ontext of a criminal case. In Mosavi , the appellant sought to set aside

a criminal fo

rfeiture impo sed as part of his cr iminal sentence

via
a Rule 60(b) motion. Id. at 1365. This Court stated, howe

ver, that the Fede

ral Rule of Civil Procedure “unambiguously” limited thei r appl ication to civil cases. Id. at1366. Con sequently, we held that the appropr

iate vehicle for c

hallenging the forfeiture was Mosavi’s direct criminal appeal of his conviction and sentence and that “Rule 60(b) simply

does not provide for r

elief from j udgment in

a criminal case.” Id. Because§ 3582 is likewise criminal in nature, Fair c annot use Federal R ule of Civil Procedure 60(b)(4) to attack any alleged deficiencies in the district court ’ s underlying

or der deny ing Fair’s § 3582(c)(2) motion. Consequently, the district court correctly den

ied Fair’s Rule

60(b)(4) motio

n. AFFIRMED.