Case: 10-41241 Document: 00511471752 Page: 1 Date Filed: 05/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 10, 2011
No. 10-41241
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO GUTIERREZ-PINEDA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-697-1
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Francisco Gutierrez-Pineda (Gutierrez) pleaded guilty pursuant to a
written plea agreement to possession with intent to distribute cocaine, and the
district court sentenced him to 108 months of imprisonment. More than five
months after the entry of the judgment, he filed a notice of appeal. The district
court denied Gutierrez leave to proceed in forma pauperis (IFP) on appeal,
certifying that the appeal was not taken in good faith in light of the untimeliness
of his notice of appeal.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-41241 Document: 00511471752 Page: 2 Date Filed: 05/10/2011
No. 10-41241
Gutierrez moves this court for appointment of counsel and leave to appeal
IFP. We may dismiss an appeal when considering an interlocutory motion if the
appeal “is frivolous and entirely without merit.” 5 TH C IR. R. 42.2. Gutierrez did
not file his notice of appeal within 14 days after the entry of the judgment as
required by Federal Rule of Appellate Procedure 4(b)(1)(A)(i) or within Rule
4(b)(4)’s 30-day window for seeking an extension of time. He 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). Accordingly, we deny the
motions for appointment of counsel and leave to appeal IFP, and we dismiss the
appeal as frivolous. See 5 TH C IR. R. 42.2.
MOTIONS DENIED; APPEAL DISMISSED.
2