USA v. Paul Alvarez

Filing 920100120

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Case: 09-50570 Document: 00511007513 Page: 1 Date Filed: 01/19/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50570 Summary Calendar January 19, 2010 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. PAUL JASON ALVAREZ, also known as Jason Alvarez, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:08-CR-219-1 Before HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges. PER CURIAM:* Pursuant to a plea agreement, Paul Jason Alvarez pleaded guilty to one count of conspiring to distribute and possess with the intent to distribute 50 grams or more of methamphetamine. He was sentenced to 210 months of imprisonment and five years of supervised release. More than 40 days after the entry of judgment, Alvarez filed a notice of appeal and a motion for an extension of time to file an appeal. The district court denied the motion per F ED. R. A PP. P. 4(b)(4). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50570 Document: 00511007513 Page: 2 No. 09-50570 Date Filed: 01/19/2010 Counsel appointed to represent Alvarez has filed a motion to withdraw. In his response to counsel's motion, Alvarez moves for the appointment of new counsel. This court can 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. Alvarez 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)(i). His motion for an extension of time to file an appeal was filed beyond the 30-day time limit for extending the appeal period under F ED. R. A PP. P. 4(b)(4). Thus, the district court did not err in enforcing the time limitations set forth in F ED. R. A PP. P. 4(b), and this court may not reverse its decision to do so. See United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006). Because the instant appeal is without arguable merit, the appeal is dismissed as frivolous, counsel's motion to withdraw is granted, and Alvarez's motion for the appointment of new counsel is denied. See 5 TH C IR. R. 42.2. APPEAL DISMISSED; MOTIONS GRANTED IN PART AND DENIED IN PART. 2

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