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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-50192
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KENIA J. COOPER,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
February 20, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In 1992, Kenia Cooper pleaded guilty to conspiracy to import
heroin in violation of 21 U.S.C. งง 963 and 952. She was sentenced
to imprisonment followed by supervised release. After serving her
term of imprisonment, she violated the terms of her supervised
release.
In February 1997, Cooper appeared before a federal magistrate
judge for a supervised release revocation hearing. On February 13,
1997, the magistrate judge issued a report recommending that Cooper
serve a new term in prison. Cooper failed to file any objection to
the magistrate judge's proposed findings and recommendations

pursuant to 28 U.S.C. ง 636(b). On March 5, the district court
adopted the report and recommendation, revoked Cooper's supervised
release, and sentenced her to further incarceration.
On February 25, 1997, Cooper filed a notice of appeal to this
court, challenging the term of her imprisonment. Thus, Cooper
filed her appeal after the magistrate judge had issued his report
and recommendation but before the district court had issued a final
judgment adopting the recommendation. The question we must
address, then, is whether we may exercise jurisdiction over this
prematurely-filed appeal.
I.
A timely notice of appeal is necessary to the exercise of
appellate jurisdiction. United States v. Robinson, 361 U.S. 220,
224 (1960). The applicable rule states:
In a criminal case, a defendant shall file the notice
of appeal in the district court within 10 days after the
entry either of the judgment or the order appealed from,
or of a notice of appeal by the Government. A notice of
appeal filed after the announcement of a decision,
sentence, or orderSSbut before entry of the judgment or
orderSSis treated as filed on the date of and after the
entry.
FED. R. APP. P. 4(b).
By its plain terms, the first clause renders Cooper's appeal
premature: As Cooper concedes, a magistrate judge's report is not
an appealable judgment, see Trufant v. Autocon, Inc., 729 F.2d 308,
309 (5th Cir. 1984), so her appeal filed prior to the entry of the
district court's order was premature. The question, then, is
whetherSSdespite its prematuritySSthe appeal was properly filed
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according to the second sentence of rule 4(b), after the
announcement but before the entry of an order.
II.
Our attention is drawn to criminal cases in which notice of
appeal was filed after the jury verdict but before the entry of a
final judgment of conviction. See, e.g., United States v. Winn,
948 F.2d 145, 153-54 (5th Cir. 1991); United States v. Cronan,
937 F.2d 163, 164 (5th Cir. 1991). In such cases, the premature
notice of appeal is effective to perfect the appeal as of the date
the judgment is entered. Id. Similarly, in civil cases, appeal is
proper where notice is filed after the district court rules from
the bench but before the disposition is entered as a final
judgment. See, e.g., Barrett v. Atlantic Richfield Co., 95 F.3d
375, 378-79 (5th Cir. 1996); American Totalisator Co. v. Fair
Grounds Corp., 3 F.3d 810, 812-13 (5th Cir. 1993).
These cases fit squarely within the Supreme Court's
mandateSSarticulated in the civil contextSSthat rule 4 "permits a
notice of appeal from a non-final decision to operate as a notice
of appeal from the final judgment only when a district court
announces a decision that would be appealable if immediately
followed by the entry of judgment." FirsTier Mortgage Co. v.
Investors Mortgage Co., 498 U.S. 269, 276 (1991). Although an
appeal need not be from a final judgment, still it must be from a
final decision.
It is no different for criminal appeals. Rule 4(a)(2),
3

applicable to civil actions, provides: "A notice of appeal filed
after the court announces a decision or order but before the entry
of the judgment or order is treated as filed on the date of and
after the entry." FED. R. APP. P. 4(a)(2). Similarly, rule 4(b)
states: "A notice of appeal filed after the announcement of a
decision, sentence, or orderSSbut before entry of the judgment or
orderSSis treated as filed on the date of and after the entry."
FED. R. APP. P. 4(b). The almost identical language of rule 4(a)(2)
and the second clause of rule 4(b) must be given the same meaning,
so that the Supreme Court's interpretation in FirsTier of the
former must apply equally to the latter.1
In FirsTier, the district court announced from the bench that
it intended to grant summary judgment for the defendant. 498 U.S.
at 270. The court delayed its entry of a final judgment, however,
pending receipt of the defendant's proposed findings of fact and
conclusions of law of and the plaintiff's objections. Id. at
270-71. The Court upheld jurisdiction over an appeal filed after
the bench decision but before entry of the final judgment:
Even assuming that the . . . bench ruling was not final
because the district court could have changed its mind
prior to entry of judgment, the fact remains that the
bench ruling did announce a decision purporting to
dispose of all of [the plaintiff/appellant's] claims.
Had the judge set forth the judgement immediately
following the bench ruling, and had the clerk entered the
1 We apply the "normal rule of statutory construction that identical words
used in different parts of the same act are intended to have the same meaning."
Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (internal quotations omitted)
(quoting Sorenson v. Secretary of Treasury, 475 U.S. 851, 860 (1986) (quoting
Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934) (quoting Atlantic
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)))). Although
not a statutory enactment, the same rule of construction guides our
interpretation of the rules of procedure.
4

judgment on the docket, there is no question that the
bench ruling would have been "final" under ง 1291.
Id. at 277 (citation omitted).
Here, however, we are presented with a materially different
situation. Unlike the bench ruling in FirsTier, the recommendation
of a magistrate judge is not a final decision and does not in any
way "dispose of" a party's claims.
The magistrate judge's report is nothing like a jury verdict
or the oral disposition of a district judge, for the magistrate's
role under ง 636(b) is advisory, not adjudicatory. Any party may
object to the magistrate judge's proposed findings and
recommendations, and thereby compel the district court to review
the subject of those objections de novo. 28 U.S.C. ง 636(b)(1)(C).
The judge may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate." Id. The
judge may receive more evidence on the matter, or recommit the
matter to the magistrate judge with instructions. Id. In short,
"the magistrate has no authority to make a final and binding
disposition." United States v. Raddatz, 447 U.S. 667 (1980).
Systemic interests in the conservation of judicial resources
dictate that a party must not appeal an order simply because he
believes it will be adverse. Only where the appealing party is
fully certain of the court's disposition, such that the entry of
final judgment is predictably a formality, will appeal be proper.
Cf., e.g., American Totalisator, 3 F.3d at 813 ("All that remained
was the clerk's ministerial task of entering a Rule 58 judgment.").
FirsTier allows premature appeals only where there has been a final
5

decision, rendered without a formal judgment. Because a magistrate
judge's report and recommendation can never be a final decision,
Cooper's appeal therefrom was improper.
III.
Our attention is also drawn to a line of Fifth Circuit cases
that takes a much broader view of appellate jurisdiction. In
Alcorn County, Miss. v. U.S. Interstate Supplies, Inc., 731 F.2d
1160 (5th Cir. 1984), this court concluded that, except in the
narrow circumstances covered by rule 4(a)(4), "we may consider a
premature appeal in those cases where judgment becomes final prior
to disposition of the appeal." Id. at 1166 (citing Jetco Elec.
Indus. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973)). This rule was
questioned but followed nevertheless in Alcom Elec. Exch., Inc. v.
Burgess, 849 F.2d 964, 966-69 (5th Cir. 1988).
Although decisions subsequent to FirsTier have questioned
whether the Jetco-Alcorn-Alcom line remains good law after that
decision, none has found it necessary to decide the issue. See
Barrett v. Atlantic Richfield Co., 95 F.3d 375, 379 n.5 (5th Cir.
1996); Resolution Trust Corp. v. Northpark Joint Venture, 958 F.2d
1313, 1317 n.5 (5th Cir. 1992). Today we recognize that in light
of FirsTier, this expansive view of appellate jurisdiction cannot
survive.
FirsTier made plain that a premature notice of appeal operates
as a valid one "only when a district court announces a decision
that would be appealable if immediately followed by the entry of
6

judgment." 498 U.S. at 276. That rule is incompatible with this
circuit's previous theory that a premature notice of appeal is
valid wherever no post-judgment or post-trial motions, as set forth
in rule 4(a)(4), have been filed. Cf. Alcom, 849 F.2d at 967. To
the extent that our prior cases allowed appeal of non-final
decisions, they are no longer good law in the wake of FirsTier.
The appeal is DISMISSED for want of jurisdiction.
7