United States Court of Appeals
Fifth Circuit
F I L E D
June 13, 2005
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
04-10454
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE GONZALEZ, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
7:02-CR-12-1
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Guadalupe Gonzalez, Jr., seeks to appeal his sentence for
conspiracy to distribute and possess with intent to distribute 500
grams or more of cocaine and carrying and possessing a firearm in
relation to a drug trafficking crime. Gonzalez neither filed a
timely notice of appeal, nor sought a timely extension of time for
filing one. See FED. R. APP. P. 4(b)(1) & (4). Instead, over seven
months after the district court imposed sentence, Gonzalez filed
a pro se motion for an out-of-time appeal, claiming that, contrary
*
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this opinion should not be published and is not precedent except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.
to his request, his attorney had not filed a notice of appeal. The
district court granted the motion but did not re-enter the original
judgment. Gonzalez then filed a notice of appeal with our court.
Because the judgment was not re-entered, the Government filed an
unopposed motion to remand and hold the appeal in abeyance. That
motion was granted. The district court then re-entered the
judgment, and this appeal proceeded.
“[A] district court does not have the authority to create
appellate jurisdiction simply by ordering an out-of-time direct
criminal appeal. Compliance with the Federal Rules of Appellate
Procedure is imperative.” United States v. West, 240 F.3d 456, 459
(5th Cir. 2001) (emphasis in original). West addresses the proper
procedures for granting an out-of-time appeal pursuant to 28 U.S.C.
§ 2255. See id. at 459-61.
We therefore VACATE the district court’s order granting the
out-of-time appeal, and REMAND the case. On remand, the district
court should determine, in the light of West, and with regard to
the advice requirements of Castro v. United States, 540 U.S. 375,
383 (2003), whether it will construe the motion for an out-of-time
appeal as a 28 U.S.C. § 2255 motion.
Should the district court construe Gonzalez’s motion for an
out-of-time appeal as a 28 U.S.C. § 2255 motion, the district court
should provide the “second or successive” warnings mandated by
Castro. See Castro, 540 U.S. at 383. The district court should
2
also instruct Gonzalez to include all 28 U.S.C. § 2255 claims
presently available to him in his current motion to vacate, set
aside, or correct the sentence. See United States v. Orozco-
Ramirez, 211 F.3d 862, 867-70 (5th Cir. 2000).
VACATED and REMANDED
3