United States v. Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4105

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLIAM L. JOHNSON, a/k/a Buddy,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Joseph Robert Goodwin,
District Judge. (CR-02-148)

Submitted: March 26, 2004 Decided: April 21, 2004

Before WIDENER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Remanded by unpublished per curiam opinion.

Barron M. Helgoe, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
Miller A. Bushong, III, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

William L. Johnson pled guilty to distribution of cocaine

base (crack) and was sentenced to 151 months imprisonment. His

attorney filed a timely notice of appeal on January 16, 2003.

However, Johnson filed a pro se motion for reconsideration of the

sentence that was received in the district court the following day.

We remanded his case to allow the district court to determine

whether Johnson’s pro se motion for reconsideration of his sentence

was filed, pursuant to Houston v. Lack, 487 U.S. 266 (1988), before

his attorney filed the notice of appeal. On remand, the district

court determined that the motion for reconsideration was filed on

January 15, 2003, a day before the notice of appeal was filed, and

that the district court thus retained jurisdiction to consider the

motion. The district court has not yet ruled on the motion for

reconsideration.

When a timely motion for reconsideration is filed in a

criminal case, the ten-day appeal period does not begin to run

until after the motion to reconsider has been decided by the

district court. See United States v. Ibarra, 502 U.S. 1, 4 n.2

(1991); United States v. Dieter, 429 U.S. 6, 7-8 (1976); United

States v. Healy, 376 U.S. 75, 77-79 (1964); United States v.

Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993). Accordingly,

Johnson’s notice of appeal is premature.

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 While the disposition of a motion for reconsideration by

the district court has been held to establish jurisdiction in the

appeals court, see United States v. Jackson, 950 F.2d 633, 636

(10th Cir. 1991), Johnson’s notice of appeal will not be effective

until the district court disposes of the motion to reconsider.

We are, therefore, constrained to remand this case once

more so that the district court may rule on the motion for

reconsideration. The parties should inform this Court when the

district court has ruled and provide a copy of the order disposing

of the motion to reconsider.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

REMANDED

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