Case: 12-14255   Date Filed: 12/06/2013   Page: 1 of 6


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-14255
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 4:06-cr-00010-RLV-WEJ-1



UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,


                                 versus


JOHNNY BRETT GREGORY,


                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                           (December 6, 2013)
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Before HULL, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

       Johnny Gregory, a federal prisoner, appeals pro se the denial of his

postconviction motions for the return of his firearm, see Fed. R. Crim. P. 41(g),

and for the dismissal of his indictment. The district court denied both motions.

Although we affirm the denial of Gregory’s motion for the return of his firearm,

we vacate the denial of Gregory’s motion to dismiss his indictment and remand for

the district court to dismiss the motion for lack of subject matter jurisdiction.

Gregory also moves for sanctions against counsel for the government and for

reassignment of his case to a different judge on remand, but we deny both motions.

       In 2006, Gregory entered an agreement to plead guilty to possessing with

intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), and possessing a

firearm in furtherance of a crime of drug trafficking, 18 U.S.C. § 924(c)(1)(A). In

his written plea agreement, Gregory “agreed[] to forfeit all of his rights, title and

interest in . . . [his] Beretta 9-millmeter handgun, serial number SZ005675”;

“voluntarily abandon[ed] all right, title and interest in and right and claims to the . .

. firearm”; and “voluntarily withdr[e]w[] the claim of ownership he made to the

property.” The district court accepted Gregory’s pleas of guilty and ordered that

he forfeit his interest in the firearm.




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      In 2007, Gregory moved to vacate his sentence. Gregory argued that his

conviction for possessing a firearm was invalid because there was no evidence to

prove that he used a firearm in relation to his drug trafficking. See 28 U.S.C.

§ 2255. The district court denied the motion. Gregory appealed, but he later

dismissed the appeal.

      Gregory then moved for an order that the government produce inventory

records of his firearm, which had been seized from him in 2005 when deputies of

the Sheriff’s Office of Whitfield County and agents of the Federal Bureau of

Investigation executed a warrant to search Gregory’s residence. See 41 C.F.R.

§ 128-50.101. Gregory alleged that the firearm was in the possession of the

government, although it had, in 2008, obtained an order allowing it to destroy the

firearm, see 28 U.S.C. § 1651(a). The district court construed Gregory’s motion as

seeking the return of his firearm. See Fed. R. Crim. P. 41(g). The government

responded that it did not have to comply with section 128-50.101 because it did not

seize Gregory’s firearm; nevertheless, the government attached to its response

copies of the inventory lists provided by the Sheriff’s Office.

      Gregory next moved to strike the response of the government and to dismiss

his indictment “due to no subject matter jurisdiction.” Gregory sought relief on

two grounds: (1) the district court lacked jurisdiction to enter the order allowing

the destruction of the firearm because the government had commenced its action


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for forfeiture of his firearm more than 120 days after its seizure in 2005, see 18

U.S.C. § 924(d)(1); and (2) “the government had no jurisdiction over the alleged

grand jury indictment” and “jurisdiction [had been] lacking personal and subject

matter throughout the entire criminal action” because the firearm “[n]ever had been

in the federal governments domain.”

      The district court denied Gregory’s motions. The district court ruled that the

government was not obliged to provide Gregory an inventory list, and, in any

event, Gregory, “as a convicted felon, [did] not have possessory interest in the

handgun pursuant to the terms of his plea agreement” and the district court had

already “issued an order authorizing the destruction of the firearm in question.”

The district court also ruled that Gregory failed to provide “a valid reason to strike

the government’s response” or to cite “any valid factual or legal grounds for

dismissing [his] indictment.” With respect to Gregory’s argument that the order

allowing the destruction of the firearm was illegal, the district court ruled that

Gregory was “ignor[ing] the fact that [he] voluntarily entered into a plea

agreement, wherein he agreed to forfeit the firearm that was seized.” The district

court found “unavailing” Gregory’s jurisdictional arguments and instructed

Gregory to raise “challenge[s] [to] his indictment or any other issue related to his

conviction or plea agreement . . . via an appeal to the Eleventh Circuit.”




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      Our review is governed by two standards of review. We review de novo

“questions of law dealing with a district court’s denial of a motion for return of

seized property,” and we review related findings of fact for clear error. United

States v. Howell, 

, 973 (11th Cir. 2005). We are “obligated to inquire

into subject-matter jurisdiction sua sponte whenever it may be lacking” and review

that issue de novo. Williams v. Chatman, 

, 1293 (11th Cir. 2007)

(internal quotation marks and citation omitted).

      The district court correctly denied Gregory relief to the extent that he sought

the return of his firearm. “[F]or an owner of property to invoke Rule 41(g), he

must show that he had a possessory interest in the property seized by the

government.” 

. As Gregory admitted in his motion to

dismiss, he forfeited voluntarily his ownership rights in the firearm as a term of his

plea agreement. Gregory argues that the district court should have granted his

motion for inventory records, but that motion was rendered moot when the

government gave Gregory a copy of the inventory list produced by the Sheriff’s

Office. See United States v. Al-Arian, 

, 1189 (11th Cir. 2008).

      The district court lacked subject matter jurisdiction to consider Gregory’s

motion to dismiss his indictment. Gregory’s motion to dismiss was the functional

equivalent of a motion to vacate. Because Gregory did not obtain leave from this




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Court to file a successive motion, see 18 U.S.C. § 2255(h), Gregory’s motion to

dismiss was subject to dismissal for lack of jurisdiction.

      Gregory moves for sanctions against counsel for the government and for

reassignment of his case to a different judge on remand, but his motions lack merit.

Gregory requests that we impose sanctions against opposing counsel for obtaining

an extension of time to file their brief, but sanctions are warranted only when

conduct “multiplies the proceedings . . . unreasonably and vexatiously,” 28 U.S.C.

§ 1927. Gregory also requests that we reassign his case, but Gregory’s

disagreement with adverse rulings does not give us reason to doubt the impartiality

of the district court judge.

      We AFFIRM the denial of Gregory’s motion for return of his firearm, but

we VACATE the denial of his motion to dismiss and REMAND for the district

court to dismiss that motion for lack of subject matter jurisdiction. We DENY

Gregory’s motions for sanctions and reassignment.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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