     Case: 09-30099     Document: 00511014616          Page: 1    Date Filed: 01/28/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 28, 2010
                                     No. 09-30099
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROY JOHNSON,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CR-147-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Roy Johnson appeals his jury conviction for three counts of mail fraud in
violation of 18 U.S.C. § 1341. He argues that the district court found his pro se
motion for arrest of the judgment was timely, but did not rule on the motion. He
contends the district court’s failure to rule on the motion constitutes plain error
destroying the finality of the judgment.
        As Johnson concedes, because he did not raise in the district court the
arguments that he now presents, our review is for plain error only. To establish

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30099

plain error, the appellant must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).      If the appellant makes such a showing, this court has the
discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
       Rule 34 of the Federal Rules of Criminal Procedure provides that the court
must arrest judgment if “(1) the indictment or information does not charge an
offense; or (2) the court does not have jurisdiction of the charged offense.” F ED.
R. C RIM. P. 34(a). At the time Johnson filed his motion, Rule 34 further provides
that “[t]he defendant must move to arrest judgment within 7 days after the court
accepts a verdict or a finding of guilty, or after a plea of guilty or nolo
contendere.”1 F ED. R. C RIM. P. 34(b); see United States v. Ciriza, 55 F. App’x 717,
2002 WL 31933234 (5th Cir. 2002).
       The jury returned a unanimous verdict finding Johnson guilty of all three
counts on February 13, 2008. Johnson did not file his motion for arrest of
judgment until January 4, 2009, and Johnson did not timely filed a motion for
leave to file a Rule 34 motion at a later date. Johnson’s motion was not timely
filed and, therefore, the district court was without jurisdiction to entertain
Johnson’s motion. See Massicot v. United States, 254 F.2d 58, 61 (5th Cir. 1958);
see also United States v. Cook, 670 F.2d 46, 48 (5th Cir. 1982). Johnson has not
shown error, much less plain error, in the district court’s treatment of the Rule
34 motion. See Puckett, 129 S. Ct. at 1429.
       Contrary to Johnson’s contentions, the record indicates that the district
court did not make a definite ruling that his Rule 34 motion was timely. The
district court expressed uncertainty about whether Johnson’s motion was timely,
continued the sentencing hearing, advised Johnson to discuss the motion with


       1
         Rule 34(a) was revised, effective December 1, 2009, to provide that “[t]he defendant
must move to arrest judgment within 14 days after the court accepts a verdict or finding of
guilty, or after a plea of guilty or nolo contendere.”

                                             2
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                                 No. 09-30099

his counsel, and instructed Johnson that his counsel would file any nonfrivolous
motions that Johnson wished to file. At the next hearing, the district court
stated the motion lacked merit and ultimately deferred ruling on the motion.
      Because Johnson’s motion for arrest of the judgment was not timely filed,
it did not suspend the time for filing a notice of appeal of the district court’s
judgment of conviction.       See F ED. R. C RIM. P. 34(b); F ED. R. A PP. P. 4(b).
Therefore, Johnson’s untimely motion for arrest of judgment did not destroy the
finality of the district court’s judgment of conviction. See, e.g., United States v.
Ouellette, 55 F. App’x 717, 2002 WL 31933203 (5th Cir. 2002); see also Cook, 670
F.2d at 48. Johnson has not demonstrated error, plain or otherwise, concerning
the lack of an express ruling on the motion. See Puckett, 129 S. Ct. at 1429, see
e.g., Cook, 670 F.2d at 48.
      AFFIRMED.




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