United States v. Deluna

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 24, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50181
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL DELUNA,
Defendant-Appellant.
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CONSOLIDATED WITH
No. 03-51031
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
verses
MANUEL ROLANDO DELUNA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. DR-99-CR-632-1-WWJ
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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. 03-50181
c/w No. 03-51031
-2-
While Manuel Rolando Deluna was on supervised release for a
drug-related conviction, he was found guilty of importation of
cocaine and possession with intent to distribute cocaine in
violation of 21 U.S.C. §§ 952(a), 960(a)(1) & (b)(1), 841(a)(1)
& (b)(1)(A). On January 13, 2003, he was sentenced to concurrent
terms of 157 months’ imprisonment and five years’ supervised
release for the cocaine-related convictions. On that same date,
his supervised release for his prior drug-related conviction was
revoked. The district court imposed a sentence of 30 months’
imprisonment for his prior drug-related conviction.
Deluna filed a timely notice of appeal in appeal number
03-50181 from the sentence imposed in connection with the
revocation of his supervised release. Approximately seven months
later, he filed a motion for leave to amend the notice of appeal
because, although the notice of appeal referenced the cause
number for the sentence imposed in connection with the revocation
of his supervised release, it was intended to reference the cause
number for his cocaine-related convictions. The district court
granted his motion, and his appeal from his cocaine-related
convictions was assigned appeal number 03-51031 by the clerk of
this court. Deluna’s motion to consolidate the two appeals was
granted.
This court must examine the basis of its jurisdiction on its
own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). Deluna’s appeal from his cocaine-related convictions
No. 03-50181
c/w No. 03-51031
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was untimely, and the district court had no authority to allow
Deluna to amend his notice of appeal or to reopen the time for
filing his appeal. See FED. R. APP. P. 3(c), 4(b)(1); cf. FED. R.
APP. P. 4(a)(4)(A) & (a)(6). In addition, because the district
court could only extend the time for filing a notice of appeal
for 30 days past when it was originally due, the district court
could not, under FED. R. APP. P. 4(b)(4), allow Deluna to file his
notice of appeal approximately seven months after the judgment
was entered with respect to his cocaine-related convictions. See
FED. R. APP. P. 4(b)(4); cf. Marshall v. Hope Garcia Lancarte, 632
F.2d 1196, 1197 (5th Cir. Unit A 1980). Finally, Deluna’s appeal
from the revocation of his supervised release cannot be liberally
construed as an appeal from his cocaine-related convictions.
See Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir.
1991) (citation omitted). When an appellant “notices the appeal
of a specified judgment only or a part thereof, this court has no
jurisdiction to review other judgments or issues which are not
expressly referred to and which are not impliedly intended for
appeal.” Warfield v. Fidelity and Deposit Co., 904 F.2d 322,
325 (5th Cir. 1990). Deluna’s notice of appeal expressly
referenced an appealable judgment by the district court and in no
way indicated that he also wanted to appeal the judgment rendered
in connection with his cocaine-related convictions.
Accordingly, appeal number 03-51031 is DISMISSED for lack of
jurisdiction. His appeal from the sentence imposed in connection
No. 03-50181
c/w No. 03-51031
-4-
with the revocation of his supervised release was timely. FED.
R. APP. P. 4(b)(1). Deluna has not shown that the revocation of
his supervised release was an abuse of discretion or that there
was any error with respect to the sentence imposed upon
revocation. United States v. McCormick, 54 F.3d 214, 219 (5th
Cir. 1995). His sentence imposed in connection the revocation of
his supervised release is AFFIRMED.
APPEAL NO. 03-50181 AFFIRMED; APPEAL NO. 03-51031
DISMISSED.