Case: 19-10327    Date Filed: 11/27/2019   Page: 1 of 5


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                         ________________________

                               No. 19-10327
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 0:02-cr-60200-UU-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

VICTOR GARRY BAXTER,

                                                           Defendant-Appellant.
                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                             (November 27, 2019)


Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges

PER CURIAM:

     Victor Garry Baxter appeals from the district court’s October 25, 2017 order
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denying his motion for relief from judgment, filed in his criminal case under

Federal Rule of Civil Procedure 60(b), which challenged the imposition of a

monetary fine as part of his sentence. Baxter did not file the notice of appeal that

is now before us until January 16, 2019. In response to our jurisdictional question,

however, which concerns whether the instant appeal is criminal or civil in nature,

Mr. Baxter asserts that he filed a timely notice of appeal from the denial of his

Rule 60(b) motion on October 29, 2017. Because we conclude that Baxter’s

October 29, 2017, filing was not a proper notice of appeal—and, therefore, that his

January 16, 2019, filing constitutes the operative notice of appeal—we grant the

government’s motion to dismiss this appeal as untimely.

      Federal Rule of Appellate Procedure 3(c)(1) imposes on notices of appeal a

three-part requirement: The notice must contain the party taking the appeal,

designate the judgment or order being appealed, and name the court to which the

appeal is being taken. Rinaldo v. Corbett, 

, 1278 (11th Cir. 2001);

Fed. R. App. P. 3(c)(1). These requirements are liberally construed, see Smith v.

Barry, 

, 248 (1992), just as we liberally construe pro se filings.

Tannenbaum v. United States, 

, 1263 (11th Cir. 1998). Indeed, a pro

se notice of appeal that provides the functional equivalent of what Rule 3(c)(1)

requires and reflects clear intent to appeal may therefore be construed as a notice

of appeal. See 

–80 (11th Cir. 2001).

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      Baxter contends that the document he filed on October 29, 2017, entitled

“OBJECTIONS TO GOVERNMENT’S RESPONSE TO DEFENDANT’S

MOTION FOR RELIEF FROM JUDGMENT AND ORDER PURSUANT TO

FED. R. [CIV.] P. 60(B)(1)(6) AND/OR NOTICE OF AN APPEAL,” constitutes

the functional equivalent of a notice of appeal. Accordingly, he concludes, he

timely appealed the district court’s order.

      We disagree. Even under a liberal construction of both pro se pleadings and

notices of appeal, the document Baxter identified clearly falls short of Rule

3(c)(1)’s requirements. There are two primary reasons why this is so. First, the

filing does not designate the court to which the appeal is being taken. See Fed. R.

App. P. 3(c)(1)(B)–(C). This failure, far from being a nitpicky criticism on our

part, is fatal in itself—“the purpose of this requirement is to ensure that the filing

provides sufficient notice to other parties and the courts.” 

.

Indeed, the filing in question does not indicate whether Baxter intended to appeal

to us or to file a successive motion for reconsideration before the district court.

Though Baxter may have subjectively intended to appeal to us, “the notice

afforded by a document, not the litigant’s motivation in filing it, determines the

document’s sufficiency as a notice of appeal.” 

      Second, and relatedly, the title of the document similarly fails to evince a

clear intent to appeal. It is titled “OBJECTIONS . . . AND/OR NOTICE OF AN

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APPEAL.” The use of “and/or” identifies three possible paths that Baxter may

have intended to take—as mentioned previously, it may indicate an intent to

“appeal” in the form of (1) requesting the district court reconsider or (2) appealing

to us directly, or (3) solely raising objections to the district court’s order. The

partial indication of an intent to appeal, though certainly more than provided by the

prospective appellant in United States v. Padgett, 

, 1316–17 (11th

Cir. 2019), is simply insufficient under our precedent and the plain language of

Rule 3(c)(1). Moreover, we find the previous procedural history before the district

court instructive. Even though this filing is titled similarly to the notice of appeal

that was accepted in Document 326 (“Notice of Appeal and/or Defendant’s

Objections to Government’s Response Pursuant to [Fed. R. Crim. P.] 36”), that

filing explicitly asked for the filing to be treated as a notice of appeal.

      Third, the document in question failed to identify the “judgment, order or

part thereof appealed from[.]” Fed. R. App. P. 3(c)(1)(B). Baxter only mentioned

the government’s response to his Rule 60(b) motion, not the district court’s denial

of Rule 60(b) relief. Depending on the context in which the document was filed, it

is certainly possible that we could infer which order was being appealed.

However, the context here—specifically, Baxter’s voluminous record of appeals

and filings—cautions against such an inference.




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      In sum, we conclude that the document filed by Baxter on October 29, 2017,

was not a proper notice of appeal under Rule 3(c)(1). Accordingly, we read his

January 16, 2019, filing as his operative notice of appeal. As a result, the

government’s motion to dismiss is due to be granted because this operative notice

is untimely. See Fed. R. App. P. 4(b)(1)(A)(i); Hamer v. Neighborhood Hous.

Servs. of Chi., 

, 21 (2017). Because this appeal is criminal in nature,

we are bound to apply the time limit set forth in Rule 4(b)(1)(A)(i). See United

States v. Lopez, 

, 1312–14 (11th Cir. 2009).

      Accordingly, the government’s motion to dismiss is GRANTED and this

appeal is DISMISSED.




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