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

                                                 FILED
                                                                            July 20, 2009
                                     No. 09-40284
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JUAN ALFONSO MARTINEZ-LUNA

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:08-CR-217-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Juan Alfonso Martinez-Luna (Martinez) pleaded guilty to being an alien
found in the United States unlawfully after deportation and after having
previously been convicted of an aggravated felony offense pursuant to a plea
agreement containing an appellate waiver. He was sentenced to 66 months of
imprisonment and three years of supervised release. More than six months after
judgment was entered, Martinez filed a notice of appeal. The district court



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40284

construed Martinez’s notice of appeal as a request for leave to file an out-of-time
appeal and denied it.
        The Federal Public Defender (FPD) appointed to represent Martinez on
appeal has filed an ex parte motion to withdraw. In response, Martinez has
requested the appointment of counsel to represent him on appeal. Martinez did
not file a notice of appeal within 10 days after entry of the criminal judgment,
see F ED. R. A PP. P. 4(b)(1)(A), or within the 30-day window for extending the time
to appeal under F ED. R. A PP. P. 4(b)(4).       In light of the district court’s
enforcement of the time limitations in Rule 4, the untimeliness of the notice of
appeal may not be disregarded. See United States v. Leijano-Cruz, 473 F.3d 571,
574 (5th Cir. 2006). Because the appeal is untimely and without arguable merit,
the FPD’s motion to withdraw is granted, Martinez’s motion for the appointment
of counsel is denied, and the appeal is dismissed as frivolous. See 5 TH C IR. R.
42.2.
        MOTIONS DENIED; APPEAL DISMISSED.




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