United States v. Jose Pena-Garza

609 F. App'x 233

Opinion

PER CURIAM: *

Defendant-Appellant Jose Luis Pena-Garza pleaded guilty to an indictment charging him with illegal reentry into the United States following previous deportation. He was sentenced to a within-guidelines sentence of 25 months of imprisonment. For the first time on appeal, Pena-Garza asserts that the district court plainly erred in determining his criminal history score by assessing points for a 2011 intoxication assault conviction. The government contends that Pena-Garza’s appeal should be dismissed because his notice of appeal was untimely.

Federal Rule of Appellate Procedure 4(b)(l)(A)’s time limit for filing a timely notice of appeal “is mandatory, but not jurisdictional, because it does not derive from a statute,” and may be waived. United States v. Martinez, 496 F.3d 387, 388 (5th Cir.2007) (following reasoning in Bowles v. Russell, 551 U.S. 205, 211-13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007)). There is no waiver in the instant case. Moreover, a defendant does not 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 circumstances, the instant appeal is DISMISSED as frivolous based on the untimeliness of the notice of appeal. See 5th Cir. R. 42.2.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.