United States v. Hector De Hoyos , 642 F. App'x 441 ( 2016 )

Case: 15-50773 Document: 00513448770 Page: 1 Date Filed: 04/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50773
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 1, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
HECTOR DE HOYOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-1709-1
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Hector De Hoyos, federal prisoner # 43465-180, was adjudged guilty after
a jury trial of conspiring to possess with the intent to distribute less than 50
kilograms of marijuana. He was sentenced to 120 months of imprisonment and
five years of supervised release, and his conviction and sentence were affirmed
on direct appeal.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50773
De Hoyos and the Government filed a joint 18 U.S.C. § 3582(c)(2) motion
for a sentence reduction based upon Amendment No. 782 to the Sentencing
Guidelines, which lowered the base offense levels under U.S.S.G. § 2D1.1 for
drug-related offenses. The district court denied § 3582(c)(2) relief, and, within
the time period for filing a notice of appeal, De Hoyos filed both a motion for
reconsideration and a notice of appeal.
Before addressing the merits of the appeal, this court must examine the
basis of its jurisdiction on its own motion if necessary. See United States v. De
Los Reyes, 842 F.2d 755, 757 (5th Cir. 1988). Under Federal Rule of Appellate
Procedure 4(b)(3), the time period for filing a notice of appeal is tolled by the
filing of certain post-judgment motions. Although not listed among the
motions in Rule 4(b)(3)(A), a timely motion for reconsideration, as was filed in
the instant case, tolls the period for filing a notice of appeal. See FED. R. APP.
P. 4(b); United States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995). De
Hoyos’s notice of appeal is thus ineffective to appeal the order denying § 3582
relief until the district court rules upon his outstanding motion for
reconsideration. See FED. R. APP. P. 4(b)(3)(B)(i); Burt v. Ware, 14 F.3d 256,
260 (5th Cir. 1994) (interpreting FED. R. APP. P. 4(a)(4)).
Pursuant to 28 U.S.C. §§ 1291 and 1292, this court’s appellate
jurisdiction extends only to appeals from final decisions, certain specific types
of interlocutory decisions, and other orders that are properly certified for
appeal by the district court. See United States v. Powell, 468 F.3d 862, 863
(5th Cir. 2006). This court has long recognized that “a motion for
reconsideration in a criminal case filed within the original period in which an
appeal is permitted renders the original judgment nonfinal for purposes of
appeal for as long as the petition is pending.” United States v. Greenwood, 974
F.2d 1449, 1466 (5th Cir. 1992) (internal quotation marks and citation
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No. 15-50773
omitted). De Hoyos’s filing of an ineffective notice of appeal prior to the district
court’s resolution of his pending motion for reconsideration thus violates the
statutorily-imposed requirement of a final order. See 28 U.S.C. § 1291;
Greenwood, 974 F.2d at 1466; Bowles v. Russell, 551 U.S. 205, 213 (2007).
Because the district court has not ruled on De Hoyos’s motion for
reconsideration, this case must be REMANDED for the limited purpose of
ruling on that motion. The district court is directed to rule on De Hoyos’s
motion for reconsideration as expeditiously as possible. See Burt, 14 F.3d at
260-61. This court retains jurisdiction over the appeal except for the purposes
of the limited remand.
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