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

                                                FILED
                                                                 March 20, 2009
                                No. 08-40996
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JUAN MANUEL ESPARZA

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:08-CR-40-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Juan Manuel Esparza pleaded guilty pursuant to a written plea agreement
to conspiracy to possess with intent to distribute a quantity in excess of five
kilograms of cocaine and to possession with intent to distribute in excess of five
kilograms of cocaine and was sentenced to 17-year concurrent terms of
imprisonment and five years of supervised release. Almost four months after the
judgment of conviction was entered, Esparza filed a notice of appeal.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40996

      The district court ruled that Esparza’s notice of appeal was filed “out of
time.” In addition, the district court granted Esparza leave to proceed in forma
pauperis on appeal but denied his request for appointment of counsel.
      Esparza 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.” 5 TH C IR. R. 42.2. Esparza 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), or even within the time 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 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,
Esparza’s motion for the appointment of appellate counsel is denied, and the
appeal is dismissed as frivolous. See 5 TH C IR. R. 42.2.
      MOTION DENIED; APPEAL DISMISSED.




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