United States v. Daryl Pena

Case: 19-50140 Document: 00515049311 Page: 1 Date Filed: 07/25/2019

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

No. 19-50140 FILED July 25, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee v.

DARYL MACIAS PENA,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 7:17-CR-211-1

Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges. PER CURIAM: * Daryl Macias Pena, federal prisoner # 94475-380, pleaded guilty to possession with intent to distribute a quantity of heroin and five grams or more of actual methamphetamine. The district court’s judgment was entered on February 21, 2018. Nearly a year later, Pena filed his pro se notice of appeal and a motion seeking authorization to file an out-of-time appeal. Because the notice of appeal was filed well beyond the time for appealing and the time for extending the appeal deadline, see FED. R. APP. P. 4(b)(1)(A), (b)(4), the district

• • 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50140 Document: 00515049311 Page: 2 Date Filed: 07/25/2019

No. 19-50140

court denied Pena authorization. Pena now moves this court for the appointment of counsel on appeal. If an appeal “is frivolous and entirely without merit,” we can dismiss the appeal during consideration of an interlocutory motion. 5TH CIR. R. 42.2. Although the time limit for appealing in a criminal case is not jurisdictional, United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007), a defendant is not entitled to have his untimeliness disregarded, United States v. Leijano- Cruz, 473 F.3d 571, 574 (5th Cir. 2006). Where, as here, the district court enforces an inflexible claim processing rule, we may not reverse that decision unless the defendant shows that the district court erred, “[i]rrespective of whether the government noted the untimeliness in the district court.” Id. Pena makes no argument here that the appeal is timely or that his untimeliness should be disregarded. Furthermore, there is no indication in the record that there is a nonfrivolous basis for making such arguments. See Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 715 (2019). Pena’s appeal is frivolous because it is untimely. See United States v. Pesina-Rodriguez, 825 F.3d 787, 788 (5th Cir. 2016). Accordingly, the appeal is DISMISSED, see 5TH CIR. R. 42.2, and the motion for the appointment of counsel is DENIED.