Case: 14-11841   Date Filed: 10/28/2014   Page: 1 of 3




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11841
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 8:98-cr-00345-EAK-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

RAPHAEL ZACKERY,

                                             Defendant - Appellant.

                      ________________________

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

                            (October 28, 2014)

Before HULL, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
               Case: 14-11841    Date Filed: 10/28/2014   Page: 2 of 3


      In 2000, Raphael Zackery pled guilty to two federal charges: bank robbery

(Count 7); and using and carrying a firearm in relation to the bank robbery (Count

8). Count 7 of the indictment alleged that the bank which Mr. Zackery robbed – a

First Union Bank in Clearwater, Florida – was insured by the Federal Deposit

Insurance Corporation. At the change of plea hearing, the government, in

providing the factual basis for Count 7, stated that First Union Bank was insured

by the FDIC at the time of the robbery. Mr. Zackery agreed with the government’s

factual proffer.

      Mr. Zackery did not appeal his conviction or sentence. Instead, he filed a

motion to vacate under 28 U.S.C. § 2255 in 2011. The district court dismissed the

motion, ruling in relevant part that it was time-barred. The district court denied Mr.

Zackery a certificate of appealibility, and so did we.

      In October of 2013, Mr. Zackery filed a motion alleging that the district

court lacked jurisdiction over Count 7 of the indictment because First Union Bank

was not FDIC-insured at the time of the robbery. In essence, Mr. Zackery attacked

his convictions on Count 7 and Count 8 (which was in part based on Count 7). The

district court denied Mr. Zackery’s motion on a number of grounds, and Mr.

Zackery now appeals. Following review of the parties’ briefs and the record, we

affirm.




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              Case: 14-11841    Date Filed: 10/28/2014   Page: 3 of 3


      Given that Mr. Zackery was seeking to set aside his convictions on Counts 7

and 8, his 2013 motion constituted a second or successive § 2255 motion to vacate.

In order to file a second or successive § 2255 motion, Mr. Zachery had to first

obtain authorization from the Eleventh Circuit. See 28 U.S.C. § 2255(h). Because

he did not obtain such authorization, the district court correctly held that it

“lack[ed] jurisdiction to consider” Mr. Zackery’s 2013 motion. Farris v. United

States, 

, 1216 (11th Cir. 2003).

      The motion, moreover, could not be considered under Rule 12(b)(3)(B) of

the Federal Rules of Criminal Procedure, as Mr. Zackery’s criminal case was no

longer pending in the district court at the time the motion was filed. See United

States v. Elso, 

, 1166 (11th Cir. 2009). The district court’s order of

dismissal is affirmed.

      AFFIRMED.




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