United States v. Perez-Arellano

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2003
Charles R. Fulbruge III
Clerk
No. 02-51011
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO PEREZ-ARELLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-02-CR-224-1-WWJ
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Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Francisco Perez-Arellano appeals his guilty-plea conviction
and sentence for importation of cocaine. This court must examine
the basis of its jurisdiction on its own motion if necessary.
United States v. Lister, 53 F.3d 66, 68 (5th Cir. 1995). After
the announcement but before the entry of the judgment, Perez-
Arellano filed a “motion for a new trial and appeal of
conviction/sentence.” Because this motion did not clearly evince
an intent to appeal, the document was not an effective notice of
*
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that this opinion should not be published and is not precedent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. 02-51011
-2-
appeal. See United States v. Sacerio, 952 F.2d 860, 863 n.1 (5th
Cir. 1992). However, Perez-Arellano’s counsel filed a motion to
withdraw and appoint new counsel for appeal within 30 days after
the expiration of the ten-day period for filing a notice of
appeal; this pleading clearly evinced an intent to appeal. Id.The district court granted this motion, and this order may be
treated as a finding of excusable neglect. See United States v.
Quimby, 636 F.2d 86, 89 (5th Cir. 1981). Therefore, this court
has jurisdiction to review the district court’s judgment. See
United States v. Carr, 979 F.2d 51, 55 (5th Cir. 1992).
Perez-Arellano acknowledges that the district court’s oral
pronouncement at sentencing, which imposed a five-year term of
supervised release, controls over the written judgment, which
imposed a three-year term of supervised release. See United
States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). Perez-
Arellano argues that the district court had authority to amend
the written judgment to conform to the oral pronouncement under
FED. R. CRIM. P. 36. Because the district court intended to
imposed a five-year term of supervised release as stated at the
sentencing hearing but the court inadvertently imposed a three-
year term in the written judgment, the district court had the
authority to correct the error pursuant to FED. R. CRIM. P. 36.
See United States v. Steen, 55 F.3d 1022, 1025-26 & n.3 (5th Cir.
1995).
No. 02-51011
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Perez-Arellano acknowledges that the plea agreement
contained a waiver of the right to appeal, but he argues that the
waiver does not preclude an appeal where the district court
changes the judgment after it was entered. The record indicates
that Perez-Arellano knowingly and voluntarily waived the right to
appeal his conviction and sentence as the magistrate judge
advised Perez-Arellano of the waiver of appeal provision and he
stated that he understood and did not have any questions. See
United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).
Perez-Arellano has not cited any legal authority to support his
argument that an otherwise valid wavier of appeal should not
preclude an appeal where a court changes the judgment after it
was entered. Therefore, the waiver is valid and enforceable, and
this appeal is DISMISSED.