United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 11, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-50786
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESUS HERMILLO RODRIGUEZ-RENTERIA,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Pecos
USDC No. 4:03-CR-128-2
_________________________________________________________________
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:1
This case comes before us now for a second time. The
appellant, Jesus Hermillo Rodriguez-Renteria, was convicted, on the
basis of a conditional guilty plea, of possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). In
this appeal, he contends that the district court erred in denying
his motion to suppress roughly 1,000 pounds of marijuana, as well
as his inculpatory statements to police. Because we lack appellate
jurisdiction, the appeal is DISMISSED.
I
1
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this opinion should not be published and is not precedent except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.
In April 2003, Rodriguez-Renteria was arrested and charged
with possession with intent to distribute marijuana. He filed a
motion to suppress the evidence –- i.e., approximately 1000 pounds
of marijuana, as well as his inculpatory statements –- on the
grounds that police lacked reasonable suspicion to stop his
vehicle. A magistrate judge recommended that the motion be denied,
but the district court never adopted that recommendation –- that
is, the court never ruled on the motion to suppress.
In June 2003, Rodriguez-Renteria entered into a plea agreement
by which he reserved, under FED. R. CIV. P. 11(a)(2), the right to
appeal the denial of the motion to suppress; all other appeals were
waived by the plea agreement. The district court then entered a
judgment of conviction and sentenced him based on the guilty plea.
Rodriguez-Renteria appealed. Because the district court had not
ruled on the motion to suppress, however, and because of the plea
agreement waiver, in July 2004, we dismissed the appeal for lack of
jurisdiction. Later that month, Rodriguez-Renteria returned to the
district court, requesting that it enter an order adopting the
magistrate’s recommendations and denying his motion to suppress.
The district court did so, and Rodriguez-Renteria now appeals from
that order.
Unfortunately for Rodriguez-Renteria, this court’s appellate
jurisdiction does not extend to the collateral order in question –-
i.e., denial of the motion to suppress. As a general principle, we
may review only the final judgment of a district court, which in
2
this case means the conviction and sentence. See 28 U.S.C. § 1291;
Berman v. United States, 302 U.S. 211, 212 (1937) (“Final judgment
in a criminal case means sentence. The sentence is the
judgment.”). Moreover, in a criminal case, the notice of appeal
must be filed within ten days of the district court’s judgment.
See FED. R. APP. P. 4(b)(1)(A)(I). Although this time limit may be
extended, it may not extend more than thirty days beyond the
expiration of the original ten day period. FED. R. APP. P. 4(b)(4).
Although the notice of appeal in this case was filed within
ten days of the district court’s belated order denying Rodriguez-
Renteria’s motion to suppress, that order is not an appealable
judgment. The appealable judgment was the conviction, which was
handed down more than a year before this appeal was filed. Thus,
because the notice of appeal in this case was not from a final
judgment and was not timely, we once again lack appellate
jurisdiction.2
II
For the foregoing reasons, Rodriguez-Renteria’s appeal is
DISMISSED.
2
Unfortunately, the procedural errors in this case have
foreclosed the possibility of appellate review. Given that
Rodriguez-Renteria’s guilty plea was expressly conditioned on
reserving the right to appeal the denial of suppression, and his
counsel failed to actually obtain a final order to that effect, it
appears that his relief lies in 28 U.S.C. § 2255.
3