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

                                                FILED
                                                                 May 1, 2009
                               No. 07-10181
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

BENTLEY MARK JENKINS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 4:06-CR-18-ALL


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Bentley Mark Jenkins appeals the 96-month sentence imposed following
his guilty plea conviction to bank robbery.     The Federal Public Defender
appointed to represent Jenkins on appeal moved to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967). Counsel noted in his Anders brief,
that Jenkins filed an untimely notice of appeal. Counsel’s motion was denied,
and briefing was ordered on whether this court’s reasoning in United States v.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 07-10181

Acquaye, 452 F.3d 380, 382 (5th Cir. 2006), should be extended to apply to direct
criminal appeals involving untimely notices of appeal.
      Jenkins complied with this court’s order and filed a brief on the issue.
Jenkins contends that this court’s reasoning in Acquaye should be extended. He
asserts that the Government should be deemed to have forfeited the right to rely
on the claim processing time limits for the filing of a notice of appeal once a
notice has been filed and transcripts have been prepared. The Government has
filed a brief arguing that as long as it invokes the claim processing rule time
limits for filing a notice of appeal before this court addresses the merits of the
appeal, the invocation should be considered timely. The Government has also
filed a motion to dismiss Jenkins’s appeal on the basis that he failed to file a
timely notice of appeal.
      In United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.), cert. denied,
128 S. Ct. 728 (2007), this court determined that, because the 10-day time limit
to file a notice of appeal in Rule 4(b)(1)(A) of the Federal Rules of Appellate
Procedure is not statutorily imposed, the time limit is “not jurisdictional and
[can] be waived.” In the instant case, the Government did not forfeit or waive
its objection to Jenkins’s untimely notice of appeal. See United States v. Sealed
Appellant, 304 F. App’x 282, 284 (5th Cir. 2008). Accordingly, the Government’s
motion is GRANTED, and the appeal is DISMISSED.




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