     Case: 19-50140      Document: 00515049311         Page: 1    Date Filed: 07/25/2019




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

                                      No. 19-50140                          FILED
                                                                        July 25, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

                                                 Plaintiff-Appellee

v.

DARYL MACIAS PENA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:17-CR-211-1


Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Daryl Macias Pena, federal prisoner # 94475-380, pleaded guilty to
possession with intent to distribute a quantity of heroin and five grams or more
of actual methamphetamine. The district court’s judgment was entered on
February 21, 2018. Nearly a year later, Pena filed his pro se notice of appeal
and a motion seeking authorization to file an out-of-time appeal. Because the
notice of appeal was filed well beyond the time for appealing and the time for
extending the appeal deadline, see FED. R. APP. P. 4(b)(1)(A), (b)(4), the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50140    Document: 00515049311     Page: 2   Date Filed: 07/25/2019


                                 No. 19-50140

court denied Pena authorization.       Pena now moves this court for the
appointment of counsel on appeal.
      If an appeal “is frivolous and entirely without merit,” we can dismiss the
appeal during consideration of an interlocutory motion. 5TH CIR. R. 42.2.
Although the time limit for appealing in a criminal case is not jurisdictional,
United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007), a defendant is
not entitled to have his untimeliness disregarded, United States v. Leijano-
Cruz, 473 F.3d 571, 574 (5th Cir. 2006). Where, as here, the district court
enforces an inflexible claim processing rule, we may not reverse that decision
unless the defendant shows that the district court erred, “[i]rrespective of
whether the government noted the untimeliness in the district court.” Id.
      Pena makes no argument here that the appeal is timely or that his
untimeliness should be disregarded. Furthermore, there is no indication in the
record that there is a nonfrivolous basis for making such arguments. See
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 715 (2019).
      Pena’s appeal is frivolous because it is untimely. See United States v.
Pesina-Rodriguez, 825 F.3d 787, 788 (5th Cir. 2016). Accordingly, the appeal
is DISMISSED, see 5TH CIR. R. 42.2, and the motion for the appointment of
counsel is DENIED.




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