     Case: 14-20258      Document: 00513108592         Page: 1    Date Filed: 07/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                    No. 14-20258                            FILED
                                  Summary Calendar
                                                                         July 8, 2015
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE LUIS PENA-GARZA, also known as Jose Luis Pena, also known as Jose
Luis Pena-Garcia, also known as Gabriel Artemio Garza, also known as Jose
Louis Pena, also known as Gabriel Garza, also known as Gabriel A. Garza, also
known as Jose Luis Garza Pena, also known as Jose Luis Pena Garza,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-585-1


Before DAVIS, SMITH, and WIENER, Circuit Judges.
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


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20258     Document: 00513108592    Page: 2   Date Filed: 07/08/2015


                                 No. 14-20258

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)(1)(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 (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.




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