                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                                                                 June 13, 2005
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                  Charles R. Fulbruge III
                                                                    Clerk

                               04-10454
                           Summary Calendar


                      UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                versus

                       GUADALUPE GONZALEZ, JR.,
                                                    Defendant-Appellant.


          Appeal from the United States District Court
               for the Northern District of Texas
                          7:02-CR-12-1


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Guadalupe Gonzalez, Jr., seeks to appeal his sentence for

conspiracy to distribute and possess with intent to distribute 500

grams or more of cocaine and carrying and possessing a firearm in

relation to a drug trafficking crime.       Gonzalez neither filed a

timely notice of appeal, nor sought a timely extension of time for

filing one.    See FED. R. APP. P. 4(b)(1) & (4).    Instead, over seven

months after the district court imposed sentence,        Gonzalez filed

a pro se motion for an out-of-time appeal, claiming that, contrary

     *
       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this opinion should not be published and is not precedent except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.
to his request, his attorney had not filed a notice of appeal.    The

district court granted the motion but did not re-enter the original

judgment.    Gonzalez then filed a notice of appeal with our court.

Because the judgment was not re-entered, the Government filed an

unopposed motion to remand and hold the appeal in abeyance.      That

motion was granted.      The district court     then re-entered the

judgment, and this appeal proceeded.

     “[A] district court does not have the authority to create

appellate jurisdiction simply by ordering an out-of-time direct

criminal appeal.    Compliance with the Federal Rules of Appellate

Procedure is imperative.” United States v. West, 240 F.3d 456, 459

(5th Cir. 2001) (emphasis in original).    West addresses the proper

procedures for granting an out-of-time appeal pursuant to 28 U.S.C.

§ 2255.   See id. at 459-61.

     We therefore VACATE the district court’s order granting the

out-of-time appeal, and REMAND the case.     On remand, the district

court should determine, in the light of West, and with regard to

the advice requirements of Castro v. United States, 540 U.S. 375,

383 (2003), whether it will construe the motion for an out-of-time

appeal as a 28 U.S.C. § 2255 motion.

     Should the district court construe Gonzalez’s motion for an

out-of-time appeal as a 28 U.S.C. § 2255 motion, the district court

should provide the “second or successive” warnings mandated by

Castro.     See Castro, 540 U.S. at 383.   The district court should

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also instruct Gonzalez to include all 28 U.S.C. § 2255 claims

presently available to him in his current motion to vacate, set

aside, or correct the sentence.     See United States v. Orozco-

Ramirez, 211 F.3d 862, 867-70 (5th Cir. 2000).

                                          VACATED and REMANDED




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