USA v. Kelvin Laron Howard

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13505
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN LARON HOWARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 1:20-cr-00026-JRH-BKE-1
____________________
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2 Opinion of the Court 23-13505
Before WILSON, J ORDAN, and NEWSOM , Circuit Judges.
PER CURIAM:
This appeal is DISMISSED, sua sponte, for lack of jurisdic-
tion. On October 23, 2023, Kelvin Laron Howard, pro se, filed a
notice of appeal designating “the order” denying his motion to dis-
miss the criminal prosecution against him for lack of jurisdiction.
However, the district court had not resolved, or even addressed,
that motion at that time. On November 30, 2023, the district court
entered an oral order denying the motion.
Howard’s notice of appeal was premature, as he cannot ap-
peal an expected or contemplated order. See Fed. R. App. P.
3(c)(1)(B); Bogle v. Orange Cnty. Bd. of Cnty. Comm’rs, 162 F.3d 653,
661 (11th Cir. 1998) (“Rule 3(c) requires that a notice of appeal des-
ignate an existent judgment or order, not one that is merely ex-
pected or that is, or should be, within the appellant’s contempla-
tion when the notice of appeal is filed.”). Because the district court
had not resolved Howard’s motion to dismiss, or otherwise en-
tered any appealable order, when Howard filed his notice of ap-
peal, we lack jurisdiction over this appeal. See Bogle, 162 F.3d at 661
(dismissing premature appeal of sanctions order because “the no-
tice of appeal in this case does not confer jurisdiction over a sanc-
tions order that was entered almost two months after the notice of
appeal was filed”); McDougald v. Jenson, 786 F.2d 1465, 1474 (11th
Cir. 1986) (“[W]e cannot find the [appellant] to have intended her
notice of appeal to constitute an appeal from the order of perma-
nent injunction, as that order had not yet been entered when her
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23-13505 Opinion of the Court 3
notice of appeal was filed.”); see also United States v. Gulledge, 739
F.2d 582, 584 (11th Cir. 1984) (noting that the general rule that an
appeal may be taken from only a final judgment “has been strin-
gently applied in criminal prosecutions”); United States v. Curry, 760
F.2d 1079, 1079 (11th Cir. 1985) (“In a criminal case the final judg-
ment means the sentence.”).
No petition for rehearing may be filed unless it complies
with the timing and other requirements of 11th Cir. R. 40-3 and all
other applicable rules.
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