USA v. Ricardo Trevino

Filing 920091217

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-50588 Summary Calendar December 17, 2009 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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.

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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.

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