     Case: 09-30081     Document: 00511058059          Page: 1    Date Filed: 03/22/2010




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

                                                  FILED
                                                                           March 22, 2010
                                     No. 09-30081
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

GERARD LATHAM SMITH,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:03-CR-22-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Gerard Latham Smith, federal prisoner # 03929-095, pled guilty on
September 12, 2003, to distribution of cocaine base, possession with intent to
distribute cocaine base, and possession with intent to distribute cocaine. He was
sentenced to 121 months of imprisonment. Smith did not file a direct appeal.
        Smith’s sentence was re-examined, however, after the United States
Sentencing Commission’s November 1, 2007, retroactive amendment to the base
offense levels for crack cocaine offenses. A motion to modify the sentence under

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30081    Document: 00511058059 Page: 2        Date Filed: 03/22/2010
                                 No. 09-30081

18 U.S.C. § 3582(c)(2) was filed on Smith’s behalf, which Smith was notified of
on or about February 27, 2008. On January 16, 2009, the district court denied
relief. Smith timely filed a document with the district court, titled a “Combined
Motion to Reconsider . . . Motion to Rule on Defendant’s Objections . . . and
Notice of Appeal As to the Same.” In it, Smith stated that “if the Court denies
any part of this motion(s), the Defendant gives NOTICE to the Court of his
intent to appeal all issues raised.”
      This court must examine the basis of its jurisdiction on its own motion if
necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A notice of appeal
is required to confer jurisdiction on this court. See Fed. R. App. P. 3(a). In
Mosley, the court found that the notice of appeal was conditional, as it depended
on the court’s first denying the motion for reconsideration. Mosley, 813 F.2d at
660. Only if the document “clearly evinces the party’s intent to appeal” will it
suffice. Id. (quoting Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir. 1974) (alterations
omitted). Mosley controls here. Smith’s motion stated that he wished to appeal
only in the event the motion for reconsideration was denied. Therefore, he has
not clearly shown an intent to appeal. See Mosley, 813 F.2d at 660.
      We note that the district court’s judgment denying relief is not final, as
Smith’s motion for reconsideration apparently is still pending. See United States
v. Greenwood, 974 F.2d 1449, 1466 (5th Cir. 1992). Once the district court does
rule, Smith may file a notice of appeal at that time if he is dissatisfied with the
ruling. Mosley, 813 F.2d at 660.
      We lack jurisdiction over this appeal.       APPEAL DISMISSED; ALL
OUTSTANDING MOTIONS DENIED.




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