United States v. Rodriguez , 132 F. App'x 560 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-20264
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL ROLANDO RODRIGUEZ, also known as
Ariel Macias,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CR-291-1
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Gabriel Rolando Rodriguez seeks to appeal the sentence
following his guilty plea conviction of conspiracy to possess
with intent to distribute 1000 kilograms or more of marijuana and
conspiracy to launder money. Rodriguez did not file a notice of
appeal from the judgment entered June 10, 2002. Instead, almost
two years later, Rodriguez filed a pro se motion for an out-of-
time appeal, which the district court granted.
*
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this opinion should not be published and is not precedent except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.
No. 04-20264
-2-
“[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). 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 we REMAND the case. On remand, the
district court should treat Rodriguez’s motion for an out-of-time
appeal in accordance with West and Castro v. United States, 540
U.S. 375, 383 (2003).
ORDER VACATED; CASE REMANDED.