                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 17, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-50351
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

PATRICK ROBERT VASQUEZ,
                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 5:02-CR-653-1
                       --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Patrick Robert Vasquez was convicted and sentenced for

conspiracy to distribute cocaine base and for aiding and abetting

the possession of a firearm during a drug-trafficking crime.          His

direct appeal was dismissed on his own motion.    Over three months

later, he filed a motion to withdraw his guilty plea, which the

district court denied.    Vasquez filed a notice of appeal before,

but not after, the district court’s ruling.

     “A timely notice of appeal is necessary to the exercise of

appellate jurisdiction.”     United States v. Cooper, 135 F.3d 960,


     *
       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this opinion should not be published and is not precedent except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. 04-50351
                                 -2-

961 (5th Cir. 1998).   We lack jurisdiction for the following

reasons.

     The notice of appeal states clearly an intent to appeal

“from the judgment of conviction and sentence herein rendered

against” Vasquez, not to appeal a ruling on the motion to

withdraw the guilty plea.     See FED. R. APP. P. 3(c)(1)(B)

(requiring that a notice of appeal designate the judgment or

order being appealed).   Although a notice of appeal filed before

the entry of an order may be treated as filed on the date of and

after the entry of the order, this treatment can be given only

when the court has announced its decision and the notice of

appeal is filed thereafter.     FED. R. APP. P. 4(b)(2); see FirsTier

Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276-77

(1991).    The district court did not announce its decision or in

any way intimate what its ruling on the motion would be until its

May 4th order, and Vasquez did not thereafter file a notice of

appeal.

     Even if we were able to construe the premature notice of

appeal as effective, there is still no basis for jurisdiction.

Vasquez’s post-sentencing motion to withdraw his guilty plea was

unauthorized and without jurisdictional basis.      See United States

v. Cook, 670 F.2d 46, 48 (5th Cir. 1982); FED. R. CRIM. P. 11(e)

(after sentencing, a guilty plea may be set aside only on direct

appeal or by a 28 U.S.C. § 2255 motion).     Accordingly, this court
                           No. 04-50351
                                -3-

lacks jurisdiction over any appeal arising from Vasquez’s motion

to withdraw his guilty plea.   See Cook, 670 F.2d at 48-49.

     Vasquez’s direct appeal was dismissed upon his own motion,

and neither Vasquez, the Government, nor the district court cited

28 U.S.C. § 2255 in connection with the motion to withdraw the

guilty plea.   Even if Vasquez’s motion were construed as a 28

U.S.C. § 2255 motion, this court lacks jurisdiction because there

has been no certificate of appealability (COA) ruling by the

district court.   See United States v. Youngblood, 116 F.3d 1113,

1114-15 (5th Cir. 1997).

     This appeal is without arguable merit and thus frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).        It is

therefore DISMISSED.   5TH CIR. R. 42.2.   We caution counsel.    He

has a duty not to bring frivolous appeals.     In the future, he

will be subject to sanctions for doing so.     See United States v.

Burleson, 22 F.3d 93, 95 (5th Cir. 1994).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
