United States v. Ricardo Trevino , 356 F. App'x 722 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2009
No. 09-50588
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICARDO TREVINO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-281-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Ricardo Trevino pleaded guilty pursuant to a written
plea agreement to conspiracy to possess with the intent to distribute marijuana
and was sentenced to 87 months of imprisonment and four years of supervised
release. The district court’s judgment was entered on May 4, 2009. On June 18,
2009, Trevino filed a letter indicating his desire to appeal. He also sought the
appointment of new counsel. The district court treated Trevino’s letter as a
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-50588
request for an out-of-time appeal and denied it because it was not filed within
30 days of the expiration of the appeal period as required by Federal Rule of
Appellate Procedure 4(b)(4). The district court also denied Trevino’s request for
appointment of counsel.
Trevino has filed a motion with this court to have his counsel removed and
new counsel appointed. We may dismiss an appeal during consideration of an
interlocutory motion if the appeal “is frivolous and entirely without merit.” 5 TH
C IR. R. 42.2. Trevino did not file a notice of appeal within 10 days after the entry
of the criminal judgment, see F ED. R. A PP. P. 4(b)(1)(A), or even within the time
for extending the appeal period under F ED. R. A PP. P. 4(b)(4). Trevino is not
entitled to have the untimeliness of his notice of appeal disregarded. See United
States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006). Trevino’s motions to
have counsel removed and new counsel appointed are denied, and his delinquent
appeal is dismissed as frivolous. See 5 TH C IR. R. 42.2.
MOTIONS DENIED; APPEAL DISMISSED.
2