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

                                                                  FILED
                                                                 April 25, 2008
                                No. 07-40011
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

LUIS ALEJANDRO GARZA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 1:00-CR-36-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Luis Alejandro Garza was convicted by a jury of conspiracy to possess with
intent to distribute more than five kilograms of cocaine, possession with intent
to distribute more than five kilograms of cocaine, and aiding and abetting others
in the possession with intent to distribute more than 500 grams of cocaine. The
district court sentenced Garza to serve concurrent 324-month terms of
imprisonment to be followed by concurrent five-year (counts one, two and three)
and four-year (count four) terms of supervised release.

      *
      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should not be published and is not precedent except under the limited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. 07-40011

      Garza timely filed a notice of appeal, but we dismissed his appeal for
failure to prosecute. Garza subsequently filed a motion pursuant to 28 U.S.C.
§ 2255 in which he asked the district court for permission to file an out-of-time
appeal. Although the district court granted Garza’s motion, it did not reenter
the criminal judgment against Garza. Thus, Garza’s instant notice of appeal
was filed more than six years after the original criminal judgment was entered
against him and is untimely. See FED. R. CRIM. P. 4(b)(1)(A). However, the time
limit for filing a criminal appeal is not jurisdictional and can be waived. United
States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007).           Because the
Government did not oppose Garza’s out-of-time appeal, it has waived application
of Rule 4(b). Accordingly, we may address the merits of Garza’s claims.
      Garza argues for the first time on appeal that his sentence is invalid
because the district court imposed a sentence under the mandatory federal
guideline sentencing scheme and enhanced Garza’s sentence on the basis of facts
not admitted by Garza or found by the jury beyond a reasonable doubt. We
review for plain error. United States v. Mares, 402 F.3d 511, 513, 520-22 (5th
Cir. 2005). Garza is unable to establish plain error with regard to his claims
because he cannot establish that being sentenced under a mandatory guidelines
scheme affected his substantial rights. The record does not indicate that the
district court “would have reached a significantly different result” under a
sentencing scheme in which the Sentencing Guidelines were advisory only. See
Mares, 402 F.3d at 520-22.
      Garza also argues that the district court reversibly erred when it denied
his motion for a new trial, arguing that the district court admitted inadmissible
evidence under Rule 404(b) of the Federal Rules of Evidence. We review the
denial of a motion for a new trial for abuse of discretion. When inadmissible
Rule 404(b) evidence is introduced, a new trial is warranted if after reviewing
the record there is a significant possibility that the prejudicial evidence had a
substantial impact on the verdict. United States v. Honer, 225 F.3d 549, 555 (5th

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Cir. 2000). The record reflects that overwhelming direct and circumstantial
evidence of Garza’s guilt was presented at trial. In light of the record, there is
no significant possibility that the alleged 404(b) evidence had any impact on the
verdict. Accordingly, Garza has failed to establish that the district court abused
its discretion in denying his motion for a new trial.
      AFFIRMED.




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