Summary
holding that district court properly denied IFP status in direct appeal that was "without arguable merit" because the notice of appeal was filed nineteen months after his conviction
Summary of this case from U.S. v. WestberryOpinion
No. 09-50087 Summary Calendar.
December 16, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Jose Ramirez, Lexington, KY, pro se.
Appeal from the United States District Court for the Western District of Texas, USDC No. 5:05-CR-660-1.
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
Jose Ramirez pleaded guilty, pursuant to a written plea agreement, to possession with intent to distribute cocaine and was sentenced to a 46-month term of imprisonment and a three-year term of supervised release. See 21 U.S.C. § 841(a)(1), (b)(1)(B). The district court's judgment of conviction and sentence was entered on June 25, 2007. On January 27, 2009, Ramirez, pro se, filed a motion for leave to file an untimely notice of appeal and an accompanying notice of appeal. The district court denied Ramirez's motion to file an untimely notice of appeal and denied Ramirez leave to proceed in forma pauperis (IFP) on appeal because his appeal failed to present a "good faith" non (criminal case). Ramirez's motion to file his brief in present form is GRANTED.
Ramirez did not file a notice of appeal within ten days of the entry of the judgment of conviction and sentence. See FED.R.APP. P. 4(b)(1)(A)(i). Although FED. R.APP. P. 4(b)(4) provides for an extension of time upon a showing of excusable neglect, Ramirez's motion to file an untimely notice of appeal was filed well beyond even this extended appeal period. Thus, the district court did not err in enforcing the time limitations set forth in Rule 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, Ramirez's motion to proceed IFP is DENIED and the appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
MOTION TO FILE BRIEF IN PRESENT FORM GRANTED; MOTION FOR IFP DENIED; APPEAL DISMISSED.