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

                                                                    FILED
                                                                 November 21, 2008
                                  No. 08-10543
                                Summary Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

PEDRO TORRES-JACINTO, also known as Pete Torres

                                            Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 1:06-CR-25-1


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Pedro Torres-Jacinto pleaded guilty pursuant to a written plea agreement
to one count of illegal reentry after deportation and was sentenced to 71 months
of imprisonment, to be followed by three years of supervised release. Over a year
and a half after the judgment of conviction was entered, Torres-Jacinto filed a
notice of appeal.
      The district court ruled that Torres-Jacinto’s notice of appeal was
“untimely.” In addition, the district court granted Torres-Jacinto leave to

      *
      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should not be published and is not precedent except under the limited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. 08-10543

proceed in forma pauperis on appeal but denied his request for appointment of
counsel.
      Torres-Jacinto now moves this court for the appointment of counsel. 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. Torres-
Jacinto did not file a notice of appeal within 10 days after the entry of the
criminal judgment, see FED. R. APP. P. 4(b)(1)(A), or even within the time for
extending the appeal period under FED. R. APP. P. 4(b)(4). Thus, the district
court did not err in enforcing the time limitations set forth in Rule 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, Torres-Jacinto’s motion for the appointment of appellate counsel
is denied, and the appeal is dismissed as frivolous. See 5TH CIR. R. 42.2.
      MOTION DENIED; APPEAL DISMISSED.




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