1 Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 11, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-50786

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JESUS HERMILLO RODRIGUEZ-RENTERIA,

Defendant - Appellant.

__________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas, Pecos

USDC No. 4:03-CR-128-2

_________________________________________________________________

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM: 1

Thi s case comes before us now for a second time. The

appellant, Jesus Hermillo Rodriguez-Renteria, was convicted, on the

basis of a conditional guilty plea, of possession with intent to

distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). In

this appeal, he contends that the district court erred in denying

his motion to suppress roughly 1,000 pounds of marijuana, as well

as his inculpatory statements to police. Because we lack appellate

jurisdiction, the appeal is DISMISSED.

I2

I n April 2003, Rodriguez-Renteria was arrested and charged

with possession with intent to distribute marijuana. He filed a

motion to suppress the evidence

–- i.e., approximately 1000 pounds

of marijuana, as well as his inculpatory statements

–- on the

g rounds that police lacked reasonable suspicion to stop his

vehicle. A magistrate judge recommended that the motion be denied,

but the district court never adopted that recommendation

–- that

is, the court never ruled on the motion to suppress.

In June 2003, Rodriguez-Renteria entered into a plea agreement

by which he reserved, under F E D

. R. C IV

. P. 11(a)(2), the right to

appeal the denial of the motion to suppress; all other appeals were

waived by the plea agreement. The district court then entered a

judgment of conviction and sentenced him based on the guilty plea.

Rodriguez-Renteria appealed. Because the district court had not

ruled on the motion to suppress, however, and because of the plea

agreement waiver, in July 2004, we dismissed the appeal for lack of

jurisdiction. Later that month, Rodriguez-Renteria returned to the

district court, requesting that it enter an order adopting the

magistrate’s recommendations and denying his motion to suppress.

The district court did so, and Rodriguez-Renteria now appeals from

that order.

Unfortunately for Rodriguez-Renteria, this court’s appellate

jurisdiction does not extend to the collateral order in question

–-

i.e., denial of the motion to suppress. As a general principle, we

may review only the final judgment of a distric t court, which in2 Unfo rtunately, the procedural errors in this case have

foreclosed the possib ility of appellate review. Given that

Rodriguez-Renteria’s guilty plea was expressly conditioned on

reserving the right to appeal the denial of suppression, and his

counsel failed to actually obtain a final order to that effect, it

appears that his relief lies in 28 U.S.C. § 2255.

3 this case means the conviction and sentence. S ee 28 U.S.C. § 1291;

Berman v. United States

, 302 U.S. 211, 212 (1937) (“Final judgment

in a criminal case means sentence. The sentence is the

judgment.”). Moreover, in a criminal case, the notice of appeal

must be filed within ten days of the district court’s judgment.

See F ED

. R. A PP

. P. 4(b)(1)(A)(I). Although this time limit may be

extended, it may not extend more than thirty days beyond the

expiration of the original ten day period. F E D

. R. A PP

. P. 4(b)(4).

Although the notice of appeal in this case was filed within

ten days of the district court’s belated order denying RodriguezRenteria’s motion to suppress, that order is not an appealable

judgment. The appealable judgment was the conviction, which was

handed down more than a year before this appeal was filed. Thus,

because the notice of appeal in t his case was not from a final

judgment and w as not timely, we once again lack appellate

jurisdiction. 2

II

For the foregoing reasons, Rodriguez-Renteria’s appeal is

DISMISSED.