UNITED STATES of America, Plaintiff-Appellee v. Jose Maurillo DOMINGUEZ-GARCIA, Defendant-Appellant, 325 F. App'x 397

PER CURIAM: Jose Maurillo Dominguez-Garcia (Dominguez) pleaded guilty to being unlawfully present in the United States following removal and was sentenced to 27 months of imprisonment and three years of supervised release. Almost seven months after the entry of judgment, Dominguez filed a notice of appeal. The magistrate judge granted the motion to withdraw filed by counsel appointed to represent Dominguez in the district court. The magistrate judge declined to appoint Dominguez replacement counsel for appeal, and she noted that Dominguez’s notice of appeal was untimely.

Dominguez now moves this court for the appointment of counsel. 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. Dominguez did not file a notice of appeal within 10 days after the entry of the criminal judgment, see Fed. R.App. P. 4(b)(1)(A), or even within the time for extending the appeal period under Fed. R.App. P. 4(b)(4). Dominguez is not entitled to have the untimeliness of his notice of appeal disregarded. See United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir.2006).

Because the instant appeal is without arguable merit, Dominguez’s motion for the appointment of appellate counsel is denied, and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. MOTION DENIED; APPEAL DISMISSED. Pursuant to 5th Cut. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.