     Case: 18-60551       Document: 00514703822         Page: 1    Date Filed: 10/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                      No. 18-60551
                                                                            Fifth Circuit

                                                                          FILED
                                                                    October 30, 2018

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
                                                  Plaintiff-Appellee

v.

JAMES EDWARD FRYE, also known as Sealed Defendant #2,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 4:01-CR-8-2


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: ∗
       James Edward Frye, federal prisoner # 98362-024, filed a notice of
appeal that invokes 18 U.S.C. §§ 3741 and 3742 as bases for review of one or
more of his 2005 sentences for conspiracy to commit offenses against the
United States, carjacking resulting in death, use of a firearm during and in
relation to a crime of violence, and interstate transportation of a stolen motor
vehicle. Frye was sentenced to life imprisonment without the possibility of
release on the carjacking conviction and to lesser, consecutive sentences on the

       ∗
         Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
    Case: 18-60551     Document: 00514703822      Page: 2   Date Filed: 10/30/2018


                                  No. 18-60551

other convictions. This court affirmed. United States v. Frye, 489 F.3d 201,
205-14 (5th Cir. 2007).
      Frye’s instant notice of appeal was filed more than 13 years after entry
of judgment, beyond the time periods for appealing and for extending the
appeal period. See FED. R. APP. P. 4(b). Although the time limit for appealing
in a criminal case is not jurisdictional, see United States v. Martinez, 496 F.3d
387, 388-89 (5th Cir. 2007), a defendant is not entitled to have his untimeliness
disregarded, see United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir.
2006).   However, dismissing for other reasons, we pretermit the issue of
timeliness. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      Because Frye previously appealed his judgment of conviction and lost,
the instant appeal is frivolous. See Frye, 489 F.3d at 201, 205-14. Frye is not
entitled to appeal that judgment again. See United States v. Rodriguez, 821
F.3d 632, 633 (5th Cir. 2016). Thus, his second appeal is “not properly before
this Court.” United States v. Arlt, 567 F.2d 1295, 1297 (5th Cir. 1978).
      And, notwithstanding Frye’s notion to the contrary, § 3742 does not
provide a jurisdictional basis for relief. See United States v. Early, 27 F.3d 140,
142 (5th Cir. 1994); see also United States v. Hazlewood, 526 F.3d 862, 864 (5th
Cir. 2008). Frye is precluded from obtaining § 3742 relief, which applies “only
upon direct appeal of a sentence or conviction,” as his direct appeal concluded
in 2007. Early, 27 F.3d at 142; see Frye, 489 F.3d at 201. His invocation of
§ 3742 is meaningless and unauthorized. See Early, 27 F.3d at 142.
      Accordingly, we DISMISS this appeal. See 5TH CIR. R. 42.2. Frye’s
motion to proceed pro se is DENIED.




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