Case: 11-50666 Document: 00511972249 Page: 1 Date Filed: 08/31/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 31, 2012
No. 11-50666
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALBERTO VASQUEZ-TOVAR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
3:09-CR-3121-1
Before DAVIS, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant Alberto Vasquez-Tovar appeals his sentence which was imposed after
remand from a prior appeal. Before the district court, Vasquz pleaded guilty to illegal reentry
into the United States following removal and was sentenced to 70 months of imprisonment
(the low end of the applicable guidelines range) and three years of non-reporting supervised
release.
On appeal, this court determined that the district court erred in applying a 16-level
enhancement based on Vasquez’s prior conviction for a crime of violence, namely the Texas
felony offense of injury to a child with intentional bodily injury. United States v. Vasquez-
Tovar, 420 F. App’x 383, 383 (5th Cir. 2011). Additionally, this court determined that the
*
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 R. 47.5, the court has determined that this opinion should not be published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.
Case: 11-50666 Document: 00511972249 Page: 2 Date Filed: 08/31/2012
No. 11-50666
Government had not met its burden of proving that any error was harmless. Vasquez-Tovar,
420 F. App’x at 383-84. Accordingly, this court vacated the sentence and remanded the
matter for resentencing. Id. at 384.
On remand, the district court again sentenced Vasquez to 70 months of imprisonment
and three years of non-reporting supervised release. Following the resentencing hearing and
oral pronouncement of sentence, however, the district court failed to issue a written
judgment. Rule 32(k)(1) of the Federal Rules of Criminal Procedure requires “the judgment
of conviction” to set forth, inter alia, the sentence; it also requires that the district judge sign
the judgment and that the clerk enter it. See also FED. R. APP. P. 4(b)(1)(A)(i) (providing that
a defendant’s notice of appeal in a criminal case must be filed within 14 days of “the entry
of either the judgment or the order being appealed”).
Due to the lack of a written judgment imposing sentence entered after remand, we lack
jurisdiction to decide this appeal. In the interest of judicial economy, the case is remanded
to the district court for the limited purposed of entering a written judgment showing the post-
remand sentence imposed. This court will retain jurisdiction over the appeal. When the
judgment is entered, the clerk of the district court will transmit it to the clerk of this court
who will advise the panel that it has been received the judgment so this appeal can proceed.1
REMANDED.
1
Under Federal Rule of Appellate Procedure 4(b)(2), the defendant’s notice of appeal “filed after
the court announces a decision, or order – but before entry of the judgment or order – is treated as filed
on the date of and after the entry.” Accordingly, the previously filed notice of appeal is sufficient.