United States v. Rivera

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-41155 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus YOLANDA RIVERA, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-82-CR-142 - - - - - - - - - - June 16, 1998 Before DAVIS, PARKER, and DENNIS, Circuit Judges. PER CURIAM:* Yolanda Rivera appeals the district court’s dismissal of her request for leave to file motion for new trial. The Government’s motion for leave to file its brief one day out of time is GRANTED. The district court lacked authority to grant a motion for new trial or to sua sponte order a new trial. Fed. R. Crim. P. 32(d) (applicable to offenses committed prior to 1987); Carlisle v. United States, 116 S. Ct. 1460, 1464 (1996); United * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-41155 -2- States v. Smith, 331 U.S. 469, 473-75 (1947). The district court No. 97-41155 -3- did not abuse its discretion in dismissing Rivera’s request for leave to file a motion for new trial. This appeal is without arguable merit and thus frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED. 5th Cir. R. 42.2. APPEAL DISMISSED.