United States v. Gustavo Larios Cortes

Gustavo Larios Cortes appeals his conviction of conspiracy to import a controlled substance, importation of a controlled substance, possession of a controlled substance with intent to distribute, and aiding and abetting in the commission of the substantive offenses. Cortes contends that he was denied effective assistance of counsel in violation of the sixth amendment. We affirm.

Jurisdiction

We are presented with a threshold jurisdictional question. Cortes was sentenced on July 25, 1988, and on that same day he filed a motion for new trial. On August 3, 1988, he filed a notice of appeal. The district court denied Cortes’ motion for new trial on August 29, 1988. Cortes filed no new notice of appeal.

The government has suggested that Cortes’ notice of appeal, filed while his motion for new trial was pending, was premature and therefore a nullity. In a civil case, there would be no question that the government was correct. As amended in 1979, Fed.R.App.P. 4(a)(4) provides:

This provision is limited by its own terms to civil cases; Fed.R.App.P. 4(b), which deals with criminal appeals, merely provides:

There is nothing in this portion of the Rule that nullifies a notice of appeal…