                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-15564                    APRIL 19, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                     D. C. Docket No. 02-80204-CR-DMM

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                    versus

DANIEL DONALDSON,

                                                      Defendant-Appellant.


                         ________________________

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

                               (April 19, 2006)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

     Daniel Jay Donaldson, a federal prisoner proceeding pro se, appeals the
district court’s denial of his motions for misclassification of offenses and for a

more definite statement. For the reasons that follow, we affirm the district court’s

denial of his motions.

                                      I. Background

       In 2002, Donaldson was indicted for drug offenses under 21 U.S.C. §§ 841

and 846. The government notified Donaldson that he faced enhanced penalties

under § 841 based on a 1997 felony drug conviction. Donaldson had also been

convicted in 1997 for possession of a firearm by a convicted felon under 18 U.S.C.

§ 922(g), but this offense did not form the basis for the § 841 enhancement.

Donaldson pleaded guilty to two counts and received the § 841 enhancement. The

plea agreement contained a waiver of appeal provision that prohibited Donaldson

from appealing the manner in which his sentence was imposed even if it resulted

from an incorrect application of the guidelines, unless the sentence exceeded the

statutory maximum. In 2003, Donaldson was sentenced to 175 months’

imprisonment. He did not file a direct appeal.

       In 2005, Donaldson filed a pro se “motion pursuant to Fed. R. Cr. P. §§

32(b)(4)(B) and (d)(1) for misclassification of offenses.”1 Donaldson claimed that



       1
         Federal Rule of Criminal of Procedure 32(b)(4)(B) does not exist. Subsection (d)(1)
addresses the application of the sentencing guidelines and the PSI report. Fed. R. Crim. P.
32(d)(1) (2005).

                                               2
the court improperly enhanced his sentence because: (1) the judgment and

commitment order from the 1997 case charged him with a violation of 21 U.S.C. §

842(a)(1), which cannot form the basis for an enhancement under § 841; and (2)

the § 922(g) conviction from 1997 could not form the basis for an enhancement as

he did not receive a sentence in excess of one year. According to Donaldson, if the

district court had not improperly applied the enhancements, he would have faced

97-121 months’ imprisonment, which would have been reduced to 60-70 months’

imprisonment based on his acceptance of responsibility.

       On August 12, 2005, the district court summarily denied Donaldson’s

motion. On August 19, 2005, Donaldson filed a motion for a more definite

statement under Federal Rule of Civil Procedure 7, which the district court

summarily denied on September 22, 2005.2 Donaldson filed a notice of appeal,

stamped by the district court on October 3, 2005, but dated by Donaldson on

September 29, 2005.

                                       II. Discussion

       As an initial matter, the government contends that we lack jurisdiction

because Donaldson’s notice of appeal was untimely. Further, the government



       2
        Federal Rule of Civil Procedure 12(e), not Rule 7, addresses motions for a more definite
statement. Notably, the Federal Rule of Civil Procedure are inapplicable in criminal
proceedings. Fed. R. Civ. P. 1.

                                               3
asserts that the motion for a more definite statement did not toll the time in which

to file a notice of appeal.

       We have an obligation to review sua sponte whether we have jurisdiction.

United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005). “The timely

filing of a notice of appeal is a mandatory prerequisite to exercise of appellate

jurisdiction.” United States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005). “In a

criminal case, a defendant’s notice of appeal must be filed in the district court

within 10 days after . . . (i) the entry of either the judgment or the order being

appealed . . . .” Fed. R. App. P. 4(b)(1)(A)(i).

       Donaldson filed his notice of appeal on September 29 or October 3, both of

which are considerably more than ten days after the district court’s denial of his

initial motion on August 12. Yet, construing liberally Donaldson’s motion for a

more definite statement, we construe the motion as a motion for reconsideration.3

“Although a motion for reconsideration of a district court order in a criminal action

is not expressly authorized by the Federal Rules of Criminal Procedure, the

Supreme Court has held that the timely filing of such a motion in a criminal action

tolls the time for filing a notice of appeal . . . .” United States v. Vicaria, 963 F.2d

1412, 1413 (11th Cir. 1992) (citing United States v. Dieter, 429 U.S. 6, 8-9


       3
        See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se petitioner’s petition
should be read liberally).

                                                4
(1976)). Therefore, because both September 29 and October 3 are within ten days

of the district court’s September 22 denial of Donaldson’s motion for more definite

statement, we have jurisdiction over this appeal.

       Nevertheless, on the merits, we conclude that Donaldson’s motion for

misclassification must fail.4 Although, Donaldson challenges his sentence because

the district court improperly used his prior § 922(g) conviction to enhance his

sentence, the record shows that the § 922(g) conviction did not form the basis of

the enhancement. Furthermore, Donaldson’s claim that the 1997 drug conviction

could not be used to enhance his sentence because the 1997 court mistakenly listed

the conviction as under § 842 rather than as under § 841 also fails as Donaldson

concedes that he pleaded guilty to the § 841 offense. A mere scrivener’s error

listing the 1997 conviction as under § 842 does not negate the use of the

enhancement.

       Finally, because the district court properly denied the motion for

misclassification, the district court properly denied the motion for a more definite

statement. Accordingly, we AFFIRM.




       4
         We proceed to the merits even though Donaldson’s initial motion for reclassification is
likely untimely under Federal Rule of Criminal Procedure 35, which allows a district court to
correct a sentence if the motion is brought within seven days from entry of the judgment, and
likely was prohibited by the appeal waiver in Donaldson’s plea agreement.

                                                5
