UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RANDY LEE HURD,

Defendant-Appellant.

No. 98-7129

(E. District of Oklahoma)

(D.C. No. CR-97-9-S)

ORDER AND JUDGMENT*

Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Randy Lee Hurd, appearing pro se, seeks to appeal the district court's denial of Hurd's post-judgment "Motion to Dismiss" (the "Motion"). Because the district court was without jurisdiction to consider the merits of the Motion, this court vacates the district court's order denying the Motion and remands the case to the district court for entry of an order dismissing the Motion for lack of jurisdiction.

Hurd was indicted on February 18, 1997, on several charges relating to a conspiracy to distribute methamphetamine. Hurd eventually pleaded guilty to a single count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The district court entered a Judgment and Commitment on April 23, 1998, sentencing Hurd to a term of imprisonment of 168 months, followed by a sixty-month term of supervised release. Hurd's counsel filed a notice of appeal and the case proceeded to briefing on the merits in this court. While Hurd's direct appeal was still pending in this court, Hurd, acting pro se, filed the Motion. In the Motion, Hurd asked the district court to "Dismiss the indictment and Reverse [his] conviction" on the grounds that the "indictment fails to set forth any Constitutionally correct and authorized Federal statute which makes the accused subject to any Federal rules and regulations whatsoever." According to Hurd, the Motion was brought pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. On August 10, 1998, while Hurd's direct appeal remained pending in this court, the district court denied the Motion in a minute order. Hurd then filed a notice of appeal challenging the district court's denial of the Motion.1

Subject to specific exceptions not applicable here, the filing of a notice of appeal divests the district court of further jurisdiction. See United States v. Meyers, 95 F.3d 1475, 1489 n.6 (10th Cir. 1996) (stating general rule but noting exception for question of whether convicted defendant is to be released pending appeal); Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998) (stating general rule in civil context but noting exception for matters "wholly collateral to the merits" such as attorney's fees); Fed. R. App. P. 4(b) (creating limited exception to general rule for motions to correct a sentence pursuant to Fed. R. Crim. P. 35(c)).2 Accordingly, when Hurd filed his initial notice of appeal the district court was divested of jurisdiction to consider the merits of the Motion.

This court notes a further jurisdictional defect. Although Hurd denominated the Motion as brought pursuant to Federal Rule of Criminal Procedure 12(b)(2), there is simply no authority in the Federal Rules for bringing such a motion after judgment and sentence has been entered. In fact, Rule 12 specifically contemplates motions that must be brought either before or during the pendency of a criminal trial. The Motion, on the other hand, appears to allege both that the indictment failed to charge a valid offense and that the district court was without jurisdiction over the offense charged. The only apparent sources of authority for bringing such a motion post-judgment are

Federal Rule of Appellate Procedure 34 (Arrest of Judgment) and 28 U.S.C. § 2255. Unfortunately for Hurd, construed in either manner, the district court was without jurisdiction to reach the merits of the Motion. Rule 34 specifically provides that a motion to arrest judgment must be brought within seven days after a guilty plea. The seven-day time limit set out in Rule 34 is mandatory and jurisdictional. See Rowlette v. United States, 392 F.2d 437, 438-39 (10th Cir. 1968). Because the Motion was filed well outside the seven-day period, the district court lacked jurisdiction to reach its merits. The same result applies if, in the alternative, the Motion is considered a request to vacate the sentence pursuant to 28 U.S.C. § 2255. This court has specifically held that "'[a]bsent extraordinary circumstances, the orderly administration of criminal justice precludes a district court from considering a § 2255 motion while review of the direct appeal is still pending.'" United States v. Scott, 124 F.3d 1328, 1330 (10th Cir. 1997) (quoting United States v. Cook, 997 F.2d 1312, 1318-19 (10th Cir. 1993)).

Because, no matter how construed, the district court lacked jurisdiction to consider the merits of the Motion, this court VACATES the district court order

denying the Motion and REMANDS to the district court to enter an order dismissing the Motion for lack of jurisdiction.3

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge