135 F.3d 960 (5th Cir. 1998), 97-50192, United States v. Cooper

Docket Nº:97-50192
Citation:135 F.3d 960
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenia J. COOPER, Defendant-Appellant.
Case Date:February 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 960

135 F.3d 960 (5th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,


Kenia J. COOPER, Defendant-Appellant.

No. 97-50192

United States Court of Appeals, Fifth Circuit

February 20, 1998

Page 961

Richard L. Durbin, Jr., Asst. U.S. Atty., Margaret Feuille Leachman, San Antonio, TX, for Plaintiff-Appellee.

Kenia J. Cooper, Bryan, TX, pro se.

Appeal from the United States District Court for the Western District of Texas.

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 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.


A timely notice of appeal is necessary to the exercise of appellate jurisdiction. United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285-86, 4 L.Ed.2d 259 (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 order--but before entry of the judgment or order--is 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

Page 962

the district court's order was premature. The question, then, is whether--despite its prematurity--the appeal was properly filed according to the second...

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