   Case: 09-50873       Document: 00511026024          Page: 1    Date Filed: 02/11/2010




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

                                                 FILED
                                                                          February 11, 2010
                                     No. 09-50873
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

RAUL VIVAR-VILLARREAL,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 3:07-CR-676-2




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       After Raul Vivar-Villarreal pleaded true to allegations that he violated the
conditions of supervised release by committing a new offense, the district court



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50873     Document: 00511026024 Page: 2        Date Filed: 02/11/2010
                                  No. 09-50873

revoked his supervised release and sentenced him to 15 months in prison, 12
months of which are to be served consecutively to the 198-month sentence im-
posed for the new offense. Eighteen months later, Vivar-Villarreal filed a pro se
notice of appeal and a motion for leave to proceed in forma pauperis (“IFP”) on
appeal.
      The district court treated the notice of appeal as a motion to extend the
time for filing an appeal and denied it because it was not filed within 30 days of
the expiration of the appeal period as required by F ED. R. A PP. P. 4(b)(4) (2008).
The court also denied Vivar-Villarreal’s IFP motion.
      Vivar-Villarreal moves for appointment of appellate counsel and for leave
to proceed IFP on appeal. We may 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. Vivar-Villarreal did not file a notice of appeal within ten days after
the entry of the criminal judgment, see F ED. R. A PP. P. 4(b)(1)(A) (2008), or even
within the time for extending the appeal period under F ED. R. A PP. P. 4(b)(4)
(2008). He is not entitled to have the untimeliness of his notice of appeal disre-
garded. See United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006).
The motions are DENIED, and the delinquent appeal is DISMISSED as frivo-
lous. See 5 TH C IR. R. 42.2.




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