     Case: 10-50880     Document: 00511610007         Page: 1     Date Filed: 09/22/2011




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

                                                                            FILED
                                                                        September 22, 2011
                                     No. 10-50880
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CESAR JAVIER FLORES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:03-CR-203-6


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Cesar Javier Flores was convicted on October 12, 2007 of various drug
charges. He did not immediately appeal. Thereafter, Flores filed a motion
complaining that his trial attorney had rendered ineffective assistance in failing
to perfect an appeal. After the motion was denied, this court held that the
district court erred in failing to construe it as a 28 U.S.C. § 2255 motion. United
States v. Flores, 380 F. App’x 371, 372 (5th Cir. 2010). This court remanded the
case for further proceedings on Flores’s ineffective-assistance-of-counsel claim.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50880

Id. On remand, the district court determined that Flores was entitled to an out-
of-time appeal. The district court granted the § 2255 motion and ordered,
“Movant may proceed with his appeal in the underlying criminal case.”
Thereafter, Flores gave notice of his appeal from the judgment of conviction.
       This court must examine the basis of its own jurisdiction sua sponte if
necessary. United States v. West, 240 F.3d 456, 458 (5th Cir. 2001). A notice of
appeal by the defendant in a criminal case must usually be filed within 14 days
of the entry of criminal judgment. FED. R. APP. P. 4(b)(1)(A)(i). “[F]or an
out-of-time direct criminal appeal granted pursuant to a § 2255 judgment: the
underlying criminal judgment must be reinstated on the criminal docket.” West,
240 F.3d at 458. If the judgment is not reentered, a notice of appeal filed after
a simple grant of an out-of-time appeal “is both late and premature.” Id. at 459.
It is late from the original entry of the criminal judgment and “premature,
because the time to appeal, pursuant to the grant of the out-of-time appeal, has
not commenced to run.” Id. Because the record in the instant case reflects that
the district court failed to reenter the criminal judgment, Flores’s notice of
appeal is late because it was filed nearly three years after the criminal judgment
was entered.1      See id.    Under West, the § 2255 motion should have been
dismissed without prejudice. West, 240 F.3d at 459-60 (discussing Mack v.
Smith, 659 F.2d 23, 25-26 (5th Cir. Unit A 1981)).
       The district court’s order granting the § 2255 motion is VACATED, and the
case is REMANDED with instructions to dismiss the § 2255 motion, to grant an
out-of-time appeal, and to reenter the criminal judgment on the docket. See id.
at 461-62. Once the judgment is reentered, Flores’s notice of appeal will be
treated as if it was filed on the date of or after reentry. See id. (applying FED.

       1
         Although Flores’s notice of appeal is late, this Court has held that the deadlines for
filing notices of appeal in criminal cases are “not jurisdictional and [can] be waived.” United
States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007). The Government has not made an
appearance in this appeal, however, and it opposed the § 2255 motion on remand. Therefore,
it is unclear whether the Government would waive the untimeliness of the notice of appeal.

                                              2
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                                 No. 10-50880

R. APP. P. 4(b)(2)). Therefore, we hold the appeal in abeyance, and instruct the
district court to return the case to this court for further proceedings after the
judgment is reentered. See id. at 462.




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