                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                No. 04-12875                     MAY 17, 2006
                            Non-Argument Calendar              THOMAS K. KAHN
                                                                   CLERK
                          ________________________

                     D. C. Docket No. 99-08125-CR-DTKH

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                      versus

GARLAND HOGAN,

                                                       Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (May 17, 2006)

Before TJOFLAT, ANDERSON and CARNES, Circuit Judges.

PER CURIAM:

     Garland Hogan, a pro se federal prisoner, appeals the district court’s denial
of his motion for a new trial, filed pursuant to Fed. R. Crim. P. 33(b), because the

district court concluded that it lacked jurisdiction to entertain the motion while a

direct appeal was pending. We vacate and remand.

      Whether a district court is divested of jurisdiction during the pendency of an

appeal is a question of law subject to plenary review. United States v. Tovar-Rico,

61 F.3d 1529, 1532 (11th Cir. 1995). Generally, “the filing of a notice of appeal

divests the district court of jurisdiction over the aspects of the case involved in the

appeal.” Id. The Supreme Court has explained that general rule:

                    [A] federal district court and a federal court of
                    appeals should not attempt to assert jurisdiction
                    over a case simultaneously. The filing of a notice
                    of appeal is an event of jurisdictional
                    significance—it confers jurisdiction on the court of
                    appeals and divests the district court of its control
                    over those aspects of the case involved in the
                    appeal.

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402

(1982).

      Federal Rule of Criminal Procedure 33(b)(1) provides that, when “an appeal

is pending, the court may not grant a motion for a new trial [grounded on newly

discovered evidence] until the appellate court remands the case.” Fed. R. Crim. P.

33(b)(1). Nonetheless, a district court does have jurisdiction to entertain a motion

for a new trial under Fed. R. Crim. P. 33(b). The Supreme Court has instructed

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that a “District Court ha[s] jurisdiction to entertain [a] motion [for a new trial

under Fed. R. Crim. P. 33] and either deny the motion on its merits, or certify its

intention to grant the motion to the Court of Appeals, which could then entertain a

motion to remand the case.” United States v. Cronic, 466 U.S. 648, 667 n.42, 104

S. Ct. 2039, 2051 n.42, (1984). We have held: “A motion for a new trial may be

presented directly to the district court while the appeal is pending; that court may

not grant the motion but may deny it, or it may advise us that it would be disposed

to grant the motion if the case were remanded.” United States v. Fuentes-Lozano,

580 F.2d 724, 726 (5th Cir. 1978). Therefore, the district court erred when it

determined that it lacked jurisdiction to entertain Hogan’s motion because his

direct appeal was pending.

      We note that events have overtaken the case anyway. Since the district court

order we have disposed of Hogan’s direct appeal with an affirmance. The mandate

has issued, returning to the district court jurisdiction over the case. On the remand

from this appeal, therefore, the district court should exercise that jurisdiction by

either granting or denying the motion for a new trial, as the law and facts dictate.

      VACATED and REMANDED.




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