     Case: 14-20721      Document: 00513163500         Page: 1    Date Filed: 08/20/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20721
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 20, 2015
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff–Appellee,

versus

EDWARD GRAHAM; EARLIE DICKERSON,

                                                 Defendants–Appellants.




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:12-CR-732-2




Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *

       Earlie Dickerson and Edward Graham were charged in the same indict-
ment, proceeded to trial together, and were convicted of conspiracy to commit



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20721     Document: 00513163500      Page: 2   Date Filed: 08/20/2015


                                  No. 14-20721

mail fraud and mail fraud. This opinion pertains only to Dickerson.

      Judgment was entered in September 2014. Dickerson filed a notice of
appeal from the judgment in February 2015. He also filed a pro se motion to
have the judgment of conviction reinstated for the purpose of restarting the
appellate filing period, and his trial counsel filed a motion on his behalf seeking
leave to file an out-of-time appeal. The court denied those motions, and Dicker-
son filed a timely, additional notice of appeal from that order of denial. Dicker-
son now requests leave to proceed in forma pauperis on appeal, and he moves
for the appointment of appellate counsel.

      The notice of appeal from the underlying judgment of conviction was filed
more than five months after entry of judgment and well beyond both the time
for appealing and the time for extending the appeal period. See FED. R. APP.
P. 4(b)(1)(A), (b)(4). Because the government did not waive timeliness of the
notice of appeal and Dickerson is not entitled to have the untimeliness disre-
garded, there is thus no arguable legal merit to the appeal from the order deny-
ing the motion to reinstate and the motion for an out-of-time appeal. See Eber-
hart v. United States, 546 U.S. 12, 18 (2005); United States v. Leijano-Cruz,
473 F.3d 571, 574 (5th Cir. 2006); Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); see also United States v. Woods, 575 F. App’x 215, 216 (5th Cir. 2014).
Consequently, the appeal is DISMISSED, see 5TH CIR. R. 42.2, and Dickerson’s
motions for appointment of counsel and leave to proceed in forma pauperis are
DENIED.




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