     Case: 09-50570     Document: 00511007513          Page: 1    Date Filed: 01/19/2010




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

                                                  FILED
                                                                          January 19, 2010
                                     No. 09-50570
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PAUL JASON ALVAREZ, also known as Jason Alvarez,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:08-CR-219-1


Before HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Pursuant to a plea agreement, Paul Jason Alvarez pleaded guilty to one
count of conspiring to distribute and possess with the intent to distribute 50
grams or more of methamphetamine.                He was sentenced to 210 months of
imprisonment and five years of supervised release. More than 40 days after the
entry of judgment, Alvarez filed a notice of appeal and a motion for an extension
of time to file an appeal. The district court denied the motion per F ED. R. A PP.
P. 4(b)(4).

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50570    Document: 00511007513 Page: 2         Date Filed: 01/19/2010
                                 No. 09-50570

      Counsel appointed to represent Alvarez has filed a motion to withdraw.
In his response to counsel’s motion, Alvarez moves for the appointment of new
counsel.
      This court can 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.
Alvarez did not file a notice of appeal within 10 days after the entry of the
criminal judgment. See F ED. R. A PP. P. 4(b)(1)(A)(i). His motion for an extension
of time to file an appeal was filed beyond the 30-day time limit for extending the
appeal period under F ED. R. A PP. P. 4(b)(4). Thus, the district court did not err
in enforcing the time limitations set forth in F ED. R. A PP. P. 4(b), and this court
may not reverse its decision to do so. See United States v. Leijano-Cruz, 473 F.3d
571, 574 (5th Cir. 2006). Because the instant appeal is without arguable merit,
the appeal is dismissed as frivolous, counsel’s motion to withdraw is granted,
and Alvarez’s motion for the appointment of new counsel is denied. See 5 TH C IR.
R. 42.2.
      APPEAL DISMISSED; MOTIONS GRANTED IN PART AND DENIED
IN PART.




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