* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

November 14, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-51011

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO PEREZ-ARELLANO,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. DR-02-CR-224-1-WWJ

--------------------

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

PER CURIAM:*

Francisco Perez-Arellano appeals his guilty-plea conviction

and sentence for importation of cocaine. This court must examine

the basis of its jurisdiction on its own motion if necessary. 

United States v. Lister, 53 F.3d 66, 68 (5th Cir. 1995). After

the announcement but before the entry of the judgment, PerezArellano filed a “motion for a new trial and appeal of

conviction/sentence.” Because this motion did not clearly evince

an intent to appeal, the document was not an effective notice of
No. 02-51011

-2-

appeal. See United States v. Sacerio, 952 F.2d 860, 863 n.1 (5th

Cir. 1992). However, Perez-Arellano’s counsel filed a motion to

withdraw and appoint new counsel for appeal within 30 days after

the expiration of the ten-day period for filing a notice of

appeal; this pleading clearly evinced an intent to appeal. Id. 

The district court granted this motion, and this order may be

treated as a finding of excusable neglect. See United States v.

Quimby, 636 F.2d 86, 89 (5th Cir. 1981). Therefore, this court

has jurisdiction to review the district court’s judgment. See

United States v. Carr, 979 F.2d 51, 55 (5th Cir. 1992).

Perez-Arellano acknowledges that the district court’s oral

pronouncement at sentencing, which imposed a five-year term of

supervised release, controls over the written judgment, which

imposed a three-year term of supervised release. See United

States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). PerezArellano argues that the district court had authority to amend

the written judgment to conform to the oral pronouncement under

FED. R. CRIM. P. 36. Because the district court intended to

imposed a five-year term of supervised release as stated at the

sentencing hearing but the court inadvertently imposed a threeyear term in the written judgment, the district court had the

authority to correct the error pursuant to FED. R. CRIM. P. 36. 

See United States v. Steen, 55 F.3d 1022, 1025-26 & n.3 (5th Cir.

1995).
No. 02-51011

-3-

Perez-Arellano acknowledges that the plea agreement

contained a waiver of the right to appeal, but he argues that the

waiver does not preclude an appeal where the district court

changes the judgment after it was entered. The record indicates

that Perez-Arellano knowingly and voluntarily waived the right to

appeal his conviction and sentence as the magistrate judge

advised Perez-Arellano of the waiver of appeal provision and he

stated that he understood and did not have any questions. See

United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). 

Perez-Arellano has not cited any legal authority to support his

argument that an otherwise valid wavier of appeal should not

preclude an appeal where a court changes the judgment after it

was entered. Therefore, the waiver is valid and enforceable, and

this appeal is DISMISSED.