USA v. Barrientos-Zuniga

Filing

UNPUBLISHED OPINION FILED. [08-41040 Dismissed as Frivolous] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 10/01/2010 for Appellant Ernesto Barrientos-Zuniga; granting motion to withdraw as counsel filed by Attorney Ms. Jodilyn Marie Goodwin for Appellant Mr. Ernesto Barrientos-Zuniga [6505246-2] [08-41040]

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USA v. Barrientos-Zuniga Doc. 0 Case: 08-41040 Document: 00511230428 Page: 1 Date Filed: 09/10/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 08-41040 S u m m a r y Calendar September 10, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. E R N E S T O BARRIENTOS-ZUNIGA, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 1:08-CR-187-1 B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* T h e attorney appointed to represent Ernesto Barrientos-Zuniga has moved fo r leave to withdraw and has filed a brief pursuant to Anders v. California, 386 U .S . 738 (1967). Barrientos-Zuniga has not filed a response. P u r s u a n t to a written plea agreement, Ernesto Barrientos-Zuniga pleaded g u ilt y to being found unlawfully present in the United States after deportation fo llo w in g a felony conviction. The district court sentenced Barrientos-Zuniga to 7 7 months in prison and three years supervised release without supervision. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 08-41040 Document: 00511230428 Page: 2 No. 08-41040 Date Filed: 09/10/2010 B a r r ie n t o s -Z u n ig a filed an untimely pro se notice of appeal, and the district c o u r t denied him an extension of time to file an appeal. See FED. R. APP. P. 4 (b )(1 )(A ), (4). R u le 4(b)(1)(A)'s time limit for filing a timely notice of appeal "is m a n d a t o r y , but not jurisdictional, because it does not derive from a statute," and m a y be waived. United States v. Martinez, 496 F.3d 387, 388 (5th Cir. 2007) (fo llo w in g reasoning in Bowles v. Russell, 551 U.S. 205, 211-13 (2007)). Pursuant to an order by this court, counsel certifies that the Government will s e e k enforcement of Rule 4(b)(1)(A)'s time limits. Moreover, a defendant does n o t 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 c ir c u m s t a n c e s , the instant appeal is DISMISSED as frivolous based on the u n t im e lin e s s of the notice of appeal. See 5TH CIR. R. 42.2. For this reason, c o u n s e l's motion to withdraw is GRANTED, and counsel is excused from further r e s p o n s ib ilit ie s herein. 2

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