* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 11 2001 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. 1,100 MACHINE GUN RECEIVERS, Defendant.
INTERPORT OF DELTA, UTAH, Claimant, and WILLIAM YORK, President of Interport, Inc., Claimant-Appellant No. 00-4086 (D.C. No. 97-CV-491) (Utah)



### ORDER AND JUDGMENT *-2-

Before SEYMOUR , EBEL , and BRISCOE , Circuit Judges.

William York appeals the denial of his second motio n filed pursuant to Fed. R. Civ. P. 60(b). We affirm on the basis of the fo llowing facts. In 1997, the United States filed a complaint under 18 U.S.C. § 545 and 19 U.S.C. § 1595a(c)(2)(B) seeking forfeiture of 1100 machine gun receivers. Interport, Inc. thereafter filed a claim for the re ceivers, a trial was held in July 1999, and the district court entered an amended jud gment and order of forfeiture on October 12, 1999. On December 12, 1999, Mr. York, as agent of Interport, filed a notice of appeal, which was subsequently di smissed by this court for lack of prosecution. In late December 1999, Mr. York filed a pro se moti on under Fed. R. Civ. P. 60(b), in which he argued that the trial testimo ny of a United States witness was untruthful, the court’s findings and conclusion s were invalid, the court’s order did not address other items seized, and that Interport’s counsel was ineffective. The district court denied this motion on January 24, 2000. Mr. York did not file a notice of appeal from the denial of this motion. On March 2, 2000, Mr. York filed a pleading denomin ated a motion to reconsider and for findings of fact and conclusions of law under Rule 60(b). In this motion Mr. York again challenged the district court’s findings and1 Because the merits of the district court’s finding s and conclusions are not

before us on appeal, Mr. York’s motion to strike th em is denied for lack of jurisdiction. -3- conclusions, and argued that he was denied due proc ess as a result of his counsel’s incompetence. The district court denied this motion on March 14, 2000, on the ground that it made the same arguments contained in his original Rule 60(b) motion. Mr. York filed a notice of appe al from this ruling on May 16, 2000. We begin by addressing the scope of appellate revie w. Mr. York did not pursue an appeal of the matters decided in the dist rict court’s judgment and order of forfeiture entered October 12, 1999, and instead filed a motion under Rule 60(b) more than ten days after the entry of that ju dgment. A Rule 60(b) motion does not toll the time for filing an appeal, and an appeal from the denial of a Rule 60(b) motion does not preserve for appellate reviewthe merits of the underlying judgment. See Hawkins v. Evans , 64 F.3d 543, 546 (10th Cir. 1995). Thus Mr. York failed to preserve for appellate considerationthe merits of the October 12 ruling. 1 Moreover, Mr. York did not appeal the denial of his first Rule 60(b) motion, and instead filed a second motion for recon sideration under Rule 60(b) more than ten days after his original motion was de nied. This second motion likewise did not toll the time for appealing the de nial of his original Rule 60(b)-4-

motion, nor does the appeal of the second denial pr esent the propriety of the ruling on his original motion. It is clear that Mr . York has not preserved for appellate consideration either the merits of the or iginal judgment and order of forfeiture or the propriety of the denial of his or iginal Rule 60(b) motion. The only issue properly before us is the district court ’s denial of Mr. York’s second motion on the ground that it raised the same argume nts presented in his first motion. “We review the district court’s denial of a Rule 60 (b) motion for abuse of discretion.” The Servants of the Paraclete v. Does , 204 F.3d 1005, 1009 (10th Cir. 2000). Relief under Rule 60(b) is extraordinary and may be granted only in exceptional circumstances. Id. [A] motion for reconsideration and a successive Rul e 60(b) motion . . . are inappropriate vehicles to reargue an issue pr eviously addressed by the court when the motion merely advances new ar guments, or supporting facts which were available at the time o f the original motion. Absent extraordinary circumstances, not pr esent here, the basis for the second motion must not have been avai lable at the time the first motion was filed. Id. at 1012; see also Van Skiver v. United States , 952 F.2d 1241, 1243-44(10th Cir. 1992) (Rule 60(b) motion that advances issues already addressed by district court properly denied). Here the successive Rule 60(b) motion merely reiter ates arguments previously made to and rejected by the district cou rt. Accordingly, the court did-5-

not abuse its discretion in denying the motion. The judgment is AFFIRMED

. ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge