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United States v. Aclese, 99-40061 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 99-40061 Visitors: 58
Filed: Dec. 16, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-40061 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KARL GAYWIN ACLESE, Defendant-Appellant. - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:94-CR-81-2 - December 15, 1999 Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges. PER CURIAM:* Karl Gaywin Aclese (# 04913-078) appeals from the denial of a motion filed pursuant to 18 U.S.C. 3582(c)(2) and a moti
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 99-40061
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

KARL GAYWIN ACLESE,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 1:94-CR-81-2
                       --------------------

                         December 15, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Karl Gaywin Aclese (# 04913-078) appeals from the denial of

a motion filed pursuant to 18 U.S.C. 3582(c)(2) and a motion for

reconsideration.   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 motion filed pursuant to

§ 3582(c)(2) is a further motion filed by a defendant in a

criminal case, and a notice of appeal in a criminal case must be

filed within ten days of the judgment or order appealed.      See


     *
        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that this opinion should not be published and is not precedent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. 99-40061
                                -2-

§ 3582(c)(2); Fed. R. App. P. 4(b).   A timely filed motion for

reconsideration extends the time for taking an appeal so that the

period begins to run when the motion is denied.   United States v.

Lewis, 
921 F.2d 563
, 564 (5th Cir. 1991).

     Although Aclese’s timely filed motion for reconsideration

extended the period for filing a notice of appeal, orders issued

by the magistrate judge are not appealable directly to this

court.   See Mendes Junior Int'l Co. v. M/V SOKAI MARU, 
978 F.2d 920
, 924 (5th Cir. 1992)(entry of judgment by magistrate judge

without the appropriate consent and reference or special order of

designation results in a lack of jurisdiction); see also Trufant

v. Autocon, Inc., 
729 F.2d 308
, 309 (5th Cir. 1984)(orders issued

by magistrate judge are not appealable to this court).

Accordingly, Aclese’s appeal is DISMISSED for lack of

jurisdiction.

     APPEAL DISMISSED.

Source:  CourtListener

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