USA v. John Simmons

Filing 920100615

Case: 10-50033

Document: 00511143003

Page: 1

Date Filed: 06/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 10-50033 Summary Calendar June 15, 2010 Lyle W. Cayce Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOHN SIMMONS, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 1:08-CR-337-7

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* John Simmons pleaded guilty to distribution of 50 grams of more of methamphetamine and aiding and abetting. He was sentenced to 151 months of imprisonment and four years of supervised release. Over six months after the entry of judgment, Simmons, acting pro se, moved for an extension of time to file an appeal, filed a notice of appeal, and moved for the appointment of appellate counsel. The district court denied Simmons's motion for an extension of time because it was not filed within 30 days of the expiration of his appeal period, as
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50033

Document: 00511143003 Page: 2 No. 10-50033

Date Filed: 06/15/2010

required by F ED. R. A PP. P. 4(b)(4). The district court dismissed Simmons's motion for appointment of counsel. Counsel who had been appointed to

represent Simmons in the district court thereafter moved to withdraw, and the district court granted counsel's motion. Simmons now moves this court for the appointment of counsel. We may dismiss an appeal when considering an interlocutory motion if the appeal "is frivolous and entirely without merit." 5 TH C IR. R. 42.2. Simmons did not file a notice of appeal within the limitations period under F ED. R. A PP. P. 4(b)(1)(A), and his motion for an extension of time to file an appeal was filed beyond the time limitations set forth under F ED. R. A PP. P. 4(b)(4). Simmons 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). Because the instant appeal is without arguable merit, Simmons's motion for appointment of counsel is DENIED, and the appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2.

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