IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-50192

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

KENIA J. COOPER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

February 20, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In 1992, Kenia Cooper pleaded guilty to conspiracy to import

heroin in violation of 21 U.S.C. §§ 963 and 952. She was sentenced

to imprisonment followed by supervised release. After serving her

term of imprisonment, she violated the terms of her supervised

release.

In February 1997, Cooper appeared before a federal magistrate

judge for a supervised release revocation hearing. On February 13,

1997, the magistrate judge issued a report recommending that Cooper

serve a new term in prison. Cooper failed to file any objection to

the magistrate judge's proposed findings and recommendations
2

pursuant to 28 U.S.C. § 636(b). On March 5, the district court

adopted the report and recommendation, revoked Cooper's supervised

release, and sentenced her to further incarceration. 

On February 25, 1997, Cooper filed a notice of appeal to this

court, challenging the term of her imprisonment. Thus, Cooper

filed her appeal after the magistrate judge had issued his report

and recommendation but before the district court had issued a final

judgment adopting the recommendation. The question we must

address, then, is whether we may exercise jurisdiction over this

prematurely-filed appeal. 

I.

A timely notice of appeal is necessary to the exercise of

appellate jurisdiction. United States v. Robinson, 361 U.S. 220,

224 (1960). The applicable rule states:

In a criminal case, a defendant shall file the notice

of appeal in the district court within 10 days after the

entry either of the judgment or the order appealed from,

or of a notice of appeal by the Government. A notice of

appeal filed after the announcement of a decision,

sentence, or orderSSbut before entry of the judgment or

orderSSis treated as filed on the date of and after the

entry.

FED. R. APP. P. 4(b). 

By its plain terms, the first clause renders Cooper's appeal

premature: As Cooper concedes, a magistrate judge's report is not

an appealable judgment, see Trufant v. Autocon, Inc., 729 F.2d 308,

309 (5th Cir. 1984), so her appeal filed prior to the entry of the

district court's order was premature. The question, then, is

whetherSSdespite its prematuritySSthe appeal was properly filed
3

according to the second sentence of rule 4(b), after the

announcement but before the entry of an order. 

II. 

Our attention is drawn to criminal cases in which notice of

appeal was filed after the jury verdict but before the entry of a

final judgment of conviction. See, e.g., United States v. Winn,

948 F.2d 145, 153-54 (5th Cir. 1991); United States v. Cronan,

937 F.2d 163, 164 (5th Cir. 1991). In such cases, the premature

notice of appeal is effective to perfect the appeal as of the date

the judgment is entered. Id. Similarly, in civil cases, appeal is

proper where notice is filed after the district court rules from

the bench but before the disposition is entered as a final

judgment. See, e.g., Barrett v. Atlantic Richfield Co., 95 F.3d

375, 378-79 (5th Cir. 1996); American Totalisator Co. v. Fair

Grounds Corp., 3 F.3d 810, 812-13 (5th Cir. 1993).

These cases fit squarely within the Supreme Court's

mandateSSarticulated in the civil contextSSthat rule 4 “permits a

notice of appeal from a non-final decision to operate as a notice

of appeal from the final judgment only when a district court

announces a decision that would be appealable if immediately

followed by the entry of judgment.” FirsTier Mortgage Co. v.

Investors Mortgage Co., 498 U.S. 269, 276 (1991). Although an

appeal need not be from a final judgment, still it must be from a

final decision. 

It is no different for criminal appeals. Rule 4(a)(2),
 

1 We apply the "normal rule of statutory construction that identical words

used in different parts of the same act are intended to have the same meaning.”

Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (internal quotations omitted)

(quoting Sorenson v. Secretary of Treasury, 475 U.S. 851, 860 (1986) (quoting

Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934) (quoting Atlantic

Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)))). Although

not a statutory enactment, the same rule of construction guides our

interpretation of the rules of procedure.

4

applicable to civil actions, provides: “A notice of appeal filed

after the court announces a decision or order but before the entry

of the judgment or order is treated as filed on the date of and

after the entry.” FED. R. APP. P. 4(a)(2). Similarly, rule 4(b)

states: “A notice of appeal filed after the announcement of a

decision, sentence, or orderSSbut before entry of the judgment or

orderSSis treated as filed on the date of and after the entry.”

FED. R. APP. P. 4(b). The almost identical language of rule 4(a)(2)

and the second clause of rule 4(b) must be given the same meaning,

so that the Supreme Court's interpretation in FirsTier of the

former must apply equally to the latter.1

In FirsTier, the district court announced from the bench that

it intended to grant summary judgment for the defendant. 498 U.S.

at 270. The court delayed its entry of a final judgment, however,

pending receipt of the defendant's proposed findings of fact and

conclusions of law of and the plaintiff's objections. Id. at

270-71. The Court upheld jurisdiction over an appeal filed after

the bench decision but before entry of the final judgment: 

Even assuming that the . . . bench ruling was not final

because the district court could have changed its mind

prior to entry of judgment, the fact remains that the

bench ruling did announce a decision purporting to

dispose of all of [the plaintiff/appellant's] claims.

Had the judge set forth the judgement immediately

following the bench ruling, and had the clerk entered the
5

judgment on the docket, there is no question that the

bench ruling would have been “final” under § 1291.

Id. at 277 (citation omitted). 

Here, however, we are presented with a materially different

situation. Unlike the bench ruling in FirsTier, the recommendation

of a magistrate judge is not a final decision and does not in any

way “dispose of” a party's claims. 

The magistrate judge's report is nothing like a jury verdict

or the oral disposition of a district judge, for the magistrate's

role under § 636(b) is advisory, not adjudicatory. Any party may

object to the magistrate judge's proposed findings and

recommendations, and thereby compel the district court to review

the subject of those objections de novo. 28 U.S.C. § 636(b)(1)(C).

The judge may “accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate.” Id. The

judge may receive more evidence on the matter, or recommit the

matter to the magistrate judge with instructions. Id. In short,

“the magistrate has no authority to make a final and binding

disposition.” United States v. Raddatz, 447 U.S. 667 (1980). 

Systemic interests in the conservation of judicial resources

dictate that a party must not appeal an order simply because he

believes it will be adverse. Only where the appealing party is

fully certain of the court's disposition, such that the entry of

final judgment is predictably a formality, will appeal be proper.

Cf., e.g., American Totalisator, 3 F.3d at 813 (“All that remained

was the clerk's ministerial task of entering a Rule 58 judgment.”).

FirsTier allows premature appeals only where there has been a final
6

decision, rendered without a formal judgment. Because a magistrate

judge's report and recommendation can never be a final decision,

Cooper's appeal therefrom was improper.

III.

Our attention is also drawn to a line of Fifth Circuit cases

that takes a much broader view of appellate jurisdiction. In

Alcorn County, Miss. v. U.S. Interstate Supplies, Inc., 731 F.2d

1160 (5th Cir. 1984), this court concluded that, except in the

narrow circumstances covered by rule 4(a)(4), “we may consider a

premature appeal in those cases where judgment becomes final prior

to disposition of the appeal.” Id. at 1166 (citing Jetco Elec.

Indus. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973)). This rule was

questioned but followed nevertheless in Alcom Elec. Exch., Inc. v.

Burgess, 849 F.2d 964, 966-69 (5th Cir. 1988). 

Although decisions subsequent to FirsTier have questioned

whether the Jetco-Alcorn-Alcom line remains good law after that

decision, none has found it necessary to decide the issue. See

Barrett v. Atlantic Richfield Co., 95 F.3d 375, 379 n.5 (5th Cir.

1996); Resolution Trust Corp. v. Northpark Joint Venture, 958 F.2d

1313, 1317 n.5 (5th Cir. 1992). Today we recognize that in light

of FirsTier, this expansive view of appellate jurisdiction cannot

survive. 

FirsTier made plain that a premature notice of appeal operates

as a valid one “only when a district court announces a decision

that would be appealable if immediately followed by the entry of
7

judgment.” 498 U.S. at 276. That rule is incompatible with this

circuit's previous theory that a premature notice of appeal is

valid wherever no post-judgment or post-trial motions, as set forth

in rule 4(a)(4), have been filed. Cf. Alcom, 849 F.2d at 967. To

the extent that our prior cases allowed appeal of non-final

decisions, they are no longer good law in the wake of FirsTier.

The appeal is DISMISSED for want of jurisdiction.