   Case: 10-40064       Document: 00511146403          Page: 1    Date Filed: 06/18/2010




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

                                                 FILED
                                                                            June 18, 2010
                                     No. 10-40064
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

JOSUE DANIEL JIMENEZ DE LEON,
Also Known as Josue Daniel Rodriguez Jimenez,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 No. 1:08-CR-926-1




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


       Josue Jiminez De Leon pleaded guilty pursuant to a written plea agree-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40064    Document: 00511146403 Page: 2         Date Filed: 06/18/2010
                                 No. 10-40064

ment. Nearly eleven months after entry of judgment, he filed a notice of appeal
in which he also requested the appointment of counsel and for leave to proceed
in forma pauperis (“IFP”). Finding that the judgment of conviction and sentence
had become unappealable when no notice of appeal was timely filed, the district
court denied the request for appointed counsel but granted IFP status.
      Jimenez De Leon now moves for appointment of counsel. This court may
dismiss an appeal when considering an interlocutory motion if the appeal “is
frivolous and entirely without merit.” 5 TH C IR. R. 42.2. Jimenez De Leon did not
file a notice of appeal from the judgment of conviction and sentence within 10
days after entry of judgment. See F ED. R. A PP. P. 4(b)(1)(A)(i). His appeal also
was noticed beyond the 30-day time limit for extending the appeal period under
F ED. R. A PP. P. 4(b)(4). He 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 appeal is without arguable merit, we deny appointment
of counsel and dismiss the appeal as frivolous. See 5 TH C IR. R. 42.2.
      MOTION DENIED; APPEAL DISMISSED.




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