United States v. Moore , 122 F. App'x 169 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 28, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40519
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
LIONEL MOORE, also known as Doc,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:99-CR-10-12
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Before WIENER, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Lionel Moore appeals from the district court’s order that denied for lack of jurisdiction or,
alternatively, on the merits Moore’s motion to dismiss the 1999 order that accepted Moore’s guilty
plea and from the district court’s “Nunc Pro Tunc Order Accepting Guilty Plea.” Moore contends
that because the indictment did not allege a drug quantity and the magistrate judge misadvised him
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
at rearraignment of the potential sentence he faced, he entered an unknowing and involuntary guilty
plea. Moore asserts that he did not understand the consequences of his plea, and the error affected
his substantial rights. Moore argues that the district court’s nunc pro tunc order that accepted his
plea adjudged him guilty of an offense on which he had not been arraigned and to which he did not
plead guilty.
We must examine the basis of our jurisdiction on our own motion if necessary. Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A motion for reconsideration in a criminal case is timely
if filed within the time prescribed for noticing an appeal under FED. R. APP. P. 4(b). United States
v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995).
Moore’s amended judgment on re-sentencing was entered on February 17, 2004. As the
district court determined, if Moore’s motion to dismiss the 1999 order is construed as a motion for
reconsideration of a criminal judgment, Moore had until March 2, 2004, to timely file the motion.
FED. R. APP. P. 4(b)(1)(i); Brewer, 60 F.3d at 1143. Moore filed the motion on March 5, 2004. As
the district court correctly observed, t he motion was not timely filed, and the district court was
without jurisdiction to consider it.
The district court’s nunc pro tunc order corrected a clerical error. Rule 36, FED. R. CRIM.
P., provides that the district court “may at any time correct a clerical error in a judgment, order, or
other part of the record.”
Accordingly, the district court’s denial of Moore’s motion to dismiss the 1999 order and the
district court’s Nunc Pro Tunc Order Accepting Guilty Plea are AFFIRMED.
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