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that this opinion should not be published and is not precedent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v. Scott, No. 00-30132 (5th Cir. 2 Mar. 2000) (unpublished).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
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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
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