UNITED STATES of America, Plaintiff-Appellee, v. Edward GRAHAM; Earlie Dickerson, Defendants-Appellants, 613 F. App'x 430

PER CURIAM: Earlie Dickerson and Edward Graham were charged in the same indictment, proceeded to trial together, and were convicted of conspiracy to commit mail fraud and mail fraud. This opinion pertains only to Dickerson. Judgment was entered in September 2014. Dickerson filed a notice of appeal from the judgment in February 2015. He also filed a pro se motion to have the judgment of conviction reinstated for the purpose of restarting the appellate filing period, and his trial counsel filed a motion on his behalf seeking leave to file an out-of-time appeal.

The court denied those motions, and Dickerson filed a timely, additional notice of appeal from that order of denial. Dickerson now requests leave to proceed in forma pauperis on appeal, and he moves for the appointment of appellate counsel. The notice of appeal from the underlying judgment of conviction was filed more than five months after entry of judgment and well beyond both the time for appealing and the time for extending the appeal period. See Fed. R.App. P. 4(b)(1)(A), (b)(4).

Because the government did not waive timeliness of the notice of appeal and Dickerson is not entitled to have the untimeliness disregarded, there is thus no arguable legal merit to the appeal from the order denying the motion to reinstate and the motion for an out-of-time appeal. See Eberhart v. United States, 546 U.S. 12, 18, 126 S.Ct. 403, 163 L.Ed.2d 14 .(2005); United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir.2006); Howard v. King, 707 F.2d 215, 220 (5th Cir.1983); see also United States v. Woods, 575 Fed.Appx. 215, 216 (5th Cir.2014). Consequently, the appeal is DISMISSED, see 5th Cir.

R. 42.2, and Dickerson’s motions for appointment of counsel and leave to proceed in forma pauperis are DENIED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.