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

                                                 FILED
                                                                            May 27, 2009
                                     No. 09-40036
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JOSE MAURILLO DOMINGUEZ-GARCIA

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:08-CR-45-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jose Maurillo Dominguez-Garcia (Dominguez) pleaded guilty to being
unlawfully present in the United States following removal and was sentenced
to 27 months of imprisonment and three years of supervised release. Almost
seven months after the entry of judgment, Dominguez filed a notice of appeal.
       The magistrate judge granted the motion to withdraw filed by counsel
appointed to represent Dominguez in the district court. The magistrate judge



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 09-40036

declined to appoint Dominguez replacement counsel for appeal, and she noted
that Dominguez’s notice of appeal was untimely.
      Dominguez now moves this court for the appointment of counsel. This
court can dismiss an appeal during consideration of an interlocutory motion if
the appeal “is frivolous and entirely without merit.”        5 TH C IR. R. 42.2.
Dominguez did not file a notice of appeal within 10 days after the entry of the
criminal judgment, see F ED. R. A PP. P. 4(b)(1)(A), or even within the time for
extending the appeal period under F ED. R. A PP. P. 4(b)(4). Dominguez is not
entitled to have the untimeliness of his notice of appeal disregarded. See United
States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006). Because the instant
appeal is without arguable merit, Dominguez’s motion for the appointment of
appellate counsel is denied, and the appeal is dismissed as frivolous. See 5 TH
C IR. R. 42.2.
      MOTION DENIED; APPEAL DISMISSED.




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