Opinion
No. 09-50855 Summary Calendar.
July 28, 2010.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Oscar L. Cantu, Jr., Law Offices of Os# Cantu, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 5:08-CR-889-1.
Before JOLLY, GARZA, and STEWART, Circuit Judges.
Rosario Divins appeals her conviction and sentence for seven counts of criminal contempt and seven counts of mail fraud. Within ten days of the entry of judgment of conviction, Divins filed a motion for new trial based on newly discovered evidence in accordance with FED.R.CRIM.P. 33(b)(1). That motion has not yet been ruled upon and therefore the judgment of conviction is not yet final for appeal purposes. See FED. R.APP. P. 4(b)(3)(A)(ii), (bX3)(B)(i); United States v. Healy, 376 U.S. 75, 78-79, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964); United States v. Greenwood, 974 F.2d 1449, 1466 (5th Cir. 1992). Accordingly, we remand this matter to the district court for a ruling on Divins's motion for new trial.
LIMITED REMAND.