Donald Ray Abernathy v. United States

972 F.2d 1336 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Donald Ray ABERNATHY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 91-10424. United States Court of Appeals, Ninth Circuit. Submitted July 29, 1992. Decided Aug. 5, 1992. Before TANG, BEEZER and KOZINSKI, Circuit Judges. 1 MEMORANDUM ** 2 Donald Ray Abernathy appeals pro se the district court's denial of his motion for a hearing to determine the amount of restitution owed to each victim. We dismiss this appeal for lack of jurisdiction. 3 A notice of appeal filed while a Rule 59(e) motion is pending is ineffective. Allah v. Superior Court, 871 F.2d 887, 889 (9th Cir.1989) (citing Lewis v. United States Postal Serv., 840 F.2d 712, 713 (9th Cir.1988)). A notice of appeal filed before a timely Rule 59(e) motion is a nullity and the district court retains jurisdiction over the case. Tripati v. Henman, 845 F.2d 205, 206 (9th Cir.1988). 4 In 1984, Abernathy was convicted of conspiracy to…