United States v. Jose Pena-Garza , 609 F. App'x 233 ( 2015 )

Case: 14-20258 Document: 00513108592 Page: 1 Date Filed: 07/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20258 FILED
Summary Calendar
July 8, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE LUIS PENA-GARZA, also known as Jose Luis Pena, also known as Jose
Luis Pena-Garcia, also known as Gabriel Artemio Garza, also known as Jose
Louis Pena, also known as Gabriel Garza, also known as Gabriel A. Garza, also
known as Jose Luis Garza Pena, also known as Jose Luis Pena Garza,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-585-1
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Jose Luis Pena-Garza pleaded guilty to an
indictment charging him with illegal reentry into the United States following
previous deportation. He was sentenced to a within-guidelines sentence of 25
months of imprisonment. For the first time on appeal, Pena-Garza asserts that
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-20258 Document: 00513108592 Page: 2 Date Filed: 07/08/2015
No. 14-20258
the district court plainly erred in determining his criminal history score by
assessing points for a 2011 intoxication assault conviction. The government
contends that Pena-Garza’s appeal should be dismissed because his notice of
appeal was untimely.
Federal Rule of Appellate Procedure 4(b)(1)(A)’s time limit for filing a
timely notice of appeal “is mandatory, but not jurisdictional, because it does
not derive from a statute,” and may be waived. United States v. Martinez, 496
F.3d 387, 388 (5th Cir. 2007) (following reasoning in Bowles v. Russell, 551
U.S. 205, 211-13 (2007)). There is no waiver in the instant case. Moreover, a
defendant does not have a right to have the untimeliness of his notice of appeal
disregarded. United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006).
Given these circumstances, the instant appeal is DISMISSED as frivolous
based on the untimeliness of the notice of appeal. See 5th Cir. R. 42.2.
2