IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50773

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HECTOR DE HOYOS,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-1709-1

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Hector De Hoyos, federal prisoner # 43465-180, was adjudged guilty after 

a jury trial of conspiring to possess with the intent to distribute less than 50 

kilograms of marijuana. He was sentenced to 120 months of imprisonment and 

five years of supervised release, and his conviction and sentence were affirmed 

on direct appeal.

 

* 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

April 1, 2016

Lyle W. Cayce

Clerk

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No. 15-50773

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De Hoyos and the Government filed a joint 18 U.S.C. § 3582(c)(2) motion 

for a sentence reduction based upon Amendment No. 782 to the Sentencing 

Guidelines, which lowered the base offense levels under U.S.S.G. § 2D1.1 for

drug-related offenses. The district court denied § 3582(c)(2) relief, and, within 

the time period for filing a notice of appeal, De Hoyos filed both a motion for 

reconsideration and a notice of appeal. 

Before addressing the merits of the appeal, this court must examine the 

basis of its jurisdiction on its own motion if necessary. See United States v. De 

Los Reyes, 842 F.2d 755, 757 (5th Cir. 1988). Under Federal Rule of Appellate 

Procedure 4(b)(3), the time period for filing a notice of appeal is tolled by the 

filing of certain post-judgment motions. Although not listed among the 

motions in Rule 4(b)(3)(A), a timely motion for reconsideration, as was filed in 

the instant case, tolls the period for filing a notice of appeal. See FED. R. APP.

P. 4(b); United States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995). De 

Hoyos’s notice of appeal is thus ineffective to appeal the order denying § 3582 

relief until the district court rules upon his outstanding motion for 

reconsideration. See FED. R. APP. P. 4(b)(3)(B)(i); Burt v. Ware, 14 F.3d 256, 

260 (5th Cir. 1994) (interpreting FED. R. APP. P. 4(a)(4)).

Pursuant to 28 U.S.C. §§ 1291 and 1292, this court’s appellate 

jurisdiction extends only to appeals from final decisions, certain specific types 

of interlocutory decisions, and other orders that are properly certified for 

appeal by the district court. See United States v. Powell, 468 F.3d 862, 863 

(5th Cir. 2006). This court has long recognized that “a motion for 

reconsideration in a criminal case filed within the original period in which an 

appeal is permitted renders the original judgment nonfinal for purposes of 

appeal for as long as the petition is pending.” United States v. Greenwood, 974 

F.2d 1449, 1466 (5th Cir. 1992) (internal quotation marks and citation 

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omitted). De Hoyos’s filing of an ineffective notice of appeal prior to the district 

court’s resolution of his pending motion for reconsideration thus violates the 

statutorily-imposed requirement of a final order. See 28 U.S.C. § 1291; 

Greenwood, 974 F.2d at 1466; Bowles v. Russell, 551 U.S. 205, 213 (2007). 

Because the district court has not ruled on De Hoyos’s motion for 

reconsideration, this case must be REMANDED for the limited purpose of 

ruling on that motion. The district court is directed to rule on De Hoyos’s 

motion for reconsideration as expeditiously as possible. See Burt, 14 F.3d at 

260-61. This court retains jurisdiction over the appeal except for the purposes 

of the limited remand.

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