United States v. Scott

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31183 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CEDRICK SCOTT,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana (99-CR-5-ALL)

June 20, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Having pleaded guilty to firearm and drug-trafficking

offenses, Cedric Scott appeals his sentence, maintaining the

district court erred by denying him an offense level reduction for

acceptance of responsibility.

Scott’s judgment of conviction was entered on 8 December 1999;

but, he did not file a notice of appeal until 1 February 2000.

Because Scott failed to file his notice of appeal within ten days

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. of the entry of judgment, as required by FED. R. APP. P. 4(b)(1)(A),

his appeal was dismissed for lack of jurisdiction. United States

v. Scott, No. 00-30132 (5th Cir. 2 Mar. 2000) (unpublished).

Scott then filed a pro se motion for leave to file an out-of-

time appeal, claiming his counsel was ineffective for failing to

timely file a notice of appeal. The district court determined that

Scott “did file a notice of appeal at the time of sentencing”. “In

order ... to determine the appropriate procedural vehicle to

perfect this appeal”, the court appointed the Federal Public

Defender to represent Scott. On 13 September 2000, after a status

conference, the court issued a minute entry stating it “again finds

[Scott] did file an oral request for a Notice of Appeal on the day

of sentencing”. (Emphasis added.) The next day, 14 September,

Scott filed a notice of his appeal from the December 1999

conviction and sentence.

We must, if necessary, examine sua sponte the basis of our

jurisdiction. E.g., United States v. West, 240 F.3d 456, 458 (5th

Cir. 2001). An oral statement of an intent to appeal given in open

court is not sufficient to satisfy the requirement of a signed,

written notice of appeal. FED. R. APP. P. 3(a)(1), (c); see Durel

v. United States, 299 F.2d 583, 584 (5th Cir. 1961). Therefore,

the district court’s minute entry finding that, at sentencing,

Scott made an oral request for a notice of appeal is not sufficient

to confer appellate jurisdiction. Accordingly, Scott’s 14

September 2000 written notice of appeal is untimely, because it was

2 filed more than 10 days after the December 1999 entry of his

criminal judgment. See FED. R. APP. P. 4(b)(1)(A).

Scott apparently understood the district court’s minute entry

as granting his motion for an out-of-time appeal. Of course, “a

district court does not have the authority to create appellate

jurisdiction simply by ordering an out-of-time direct criminal

appeal”. West, 240 F.2d at 459 (emphasis in original). Instead,

the district court could have construed Scott’s motion for an out-

of-time appeal as a 28 U.S.C. § 2255 motion. Id. at 459-60. The

proper procedure would then be for the district court to determine

whether Scott was denied effective assistance of counsel on appeal,

and, if it so concluded, to dismiss the § 2255 motion without

prejudice and re-enter the criminal judgment. Id. at 459-61. The

time for appeal would then run anew as of the date the criminal

judgment is re-entered. Id. at 461. The ten-day period under FED.

R. APP. P. 4(b)(1)(A) applies for taking an appeal of the re-entered

criminal judgment. Id. at 459.

DISMISSED