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

                                                                            FILED
                                                                           May 13, 2008
                                     No. 08-10043
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

JERONIMO BERNAL-GARCIA

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 2:07-CR-77-ALL


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jeronimo Bernal-Garcia pled guilty to one count of possession with intent
to distribute 500 grams or more of methamphetamine and was sentenced to 168
months of imprisonment and five years of supervised release. The district
court’s judgment was entered on October 10, 2007. On December 13, 2007,
Bernal-Garcia filed a pro se motion to file an out-of-time appeal arguing that
trial counsel failed to file a timely notice of appeal despite having been asked to
do so. He also sought leave to proceed in forma pauperis (IFP) on appeal and the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-10043

appointment of appellate counsel. The district court denied Bernal-Garcia’s
motion to file an out-of-time appeal as untimely because it was not filed within
thirty days of the expiration of the appeal period as required by FED. R. APP.
P. 4(b)(4).   Further, because the motion was untimely, the district court
determined that Bernal-Garcia was not entitled to proceed IFP or to the
appointment of appellate counsel.
      Bernal-Garcia filed a timely notice of appeal from the district court’s
denial of his motion. He also filed motions to proceed IFP on appeal and for the
appointment of appellate counsel. The district court granted Bernal-Garcia’s
IFP motion but denied his motion for the appointment of appellate counsel.
Bernal-Garcia now moves this court for leave to proceed IFP on appeal and for
the appointment of appellate counsel.
      Because the district court has granted Bernal-Garcia’s motion to proceed
IFP on appeal, the IFP motion before this court is denied as moot. Further, 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. Bernal-
Garcia did not file a notice of appeal within ten days after the entry of the
criminal judgment. See FED. R. APP. P. 4(b)(1)(A). His motion to file an out-of-
time appeal was filed beyond 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, Bernal-Garcia’s motion
for the appointment of appellate counsel is denied, and the appeal is dismissed
as frivolous. See 5TH CIR. R. 42.2.
      APPEAL DISMISSED; MOTIONS DENIED.




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