                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                                F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                                October 19, 2005
                               FOR THE FIFTH CIRCUIT                         Charles R. Fulbruge III
                                                                                     Clerk


                                   No. 05-50374
                             USDC No. 3:01-CR-1940-1-DB



      UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                          versus

      RAUL SILVAS,

                                                       Defendants-Appellant.


                   Appeal from the United States District Court for
                            the Western District of Texas
          _________________________________________________________

Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

      Raul Silvas pleaded guilty to conspiring to possess 100 grams or more of

heroin with intent to distribute. Over two years after the district court had entered

final judgment in the criminal proceedings, Silvas filed a “Motion to Seek an Out of

Time Appeal.” The district court denied the motion, concluding that it lacked


      *
        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not be published and is not precedent except under the limited circumstances set forth in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.
jurisdiction to permit Silvas to seek an appeal. Silvas timely appealed from the

district court’s denial of his motion for an out-of-time appeal, and he now requests

that this court appoint him counsel for assistance in this appeal.

      This court can dismiss an appeal during consideration of an interlocutory

motion if the appeal “is frivolous and entirely without merit.” 5TH CIR. R. 42.2.

Because Silvas’s motion was filed more than 40 days after the entry of judgment, the

district court correctly concluded that it lacked jurisdiction to grant Silvas’s motion

for leave to file an out-of-time appeal. See FED. R. APP. P. 4(b)(1)(A) & 4(b)(4).

      The district court should not have sua sponte construed Silvas’s motion as a

motion to vacate his sentence under 28 U.S.C. § 2255 because the court had not

given Silvas notice of its intent, a warning about the effects of treating the motion as

a § 2255 motion, and an opportunity to add any additional claims. See Castro v.

United States, 540 U.S. 375, 383 (2003). However, notification of the

recharacterization would not change the fact that the limitation period for Silvas to

file a § 2255 motion had long since passed. See 28 U.S.C. § 2255 (providing a one-

year limitations period for federal prisoners seeking habeas relief). Since any § 2255

motion filed by Silvas would be time-barred, the district court’s failure to notify

Silvas of the recharacterization was harmless.

      Because the district court lacked jurisdiction to grant Silvas the relief he

requested, and the district court’s recharacterization was harmless, Silvas has not
established that his appeal of the district court’s denial of his motion for an out-of-

time appeal has any arguable merit. Because the appeal is frivolous, IT IS

ORDERED that the appeal be DISMISSED, and accordingly, Silvas’s motion for

appointment of counsel is DENIED.
