     Case: 08-41040     Document: 00511230428          Page: 1    Date Filed: 09/10/2010




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

                                                 FILED
                                                                        September 10, 2010
                                     No. 08-41040
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ERNESTO BARRIENTOS-ZUNIGA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:08-CR-187-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        The attorney appointed to represent Ernesto Barrientos-Zuniga has moved
for leave to withdraw and has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). Barrientos-Zuniga has not filed a response.
        Pursuant to a written plea agreement, Ernesto Barrientos-Zuniga pleaded
guilty to being found unlawfully present in the United States after deportation
following a felony conviction. The district court sentenced Barrientos-Zuniga to
77 months in prison and three years supervised release without supervision.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-41040    Document: 00511230428 Page: 2       Date Filed: 09/10/2010
                                 No. 08-41040

Barrientos-Zuniga filed an untimely pro se notice of appeal, and the district
court denied him an extension of time to file an appeal. See F ED. R. A PP. P.
4(b)(1)(A), (4).
      Rule 4(b)(1)(A)’s time limit for filing a timely notice of appeal “is
mandatory, but not jurisdictional, because it does not derive from a statute,” and
may be waived. United States v. Martinez, 496 F.3d 387, 388 (5th Cir. 2007)
(following reasoning in Bowles v. Russell, 551 U.S. 205, 211-13 (2007)).
Pursuant to an order by this court, counsel certifies that the Government will
seek enforcement of Rule 4(b)(1)(A)’s time limits. Moreover, a defendant does
not have a right to have the untimeliness of his notice of appeal disregarded.
United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006). Given these
circumstances, the instant appeal is DISMISSED as frivolous based on the
untimeliness of the notice of appeal. See 5 TH C IR. R. 42.2. For this reason,
counsel’s motion to withdraw is GRANTED, and counsel is excused from further
responsibilities herein.




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