United States v. Ramirez

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

FILED
December 16, 2009
No. 09-50087
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CR-660-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Ramirez pleaded guilty, pursuant to a written plea agreement, to
possession with intent to distribute cocaine and was sentenced to a 46-month
term of imprisonment and a three-year term of supervised release. See 21
U.S.C. § 841(a)(1), (b)(1)(B). The district court’s judgment of conviction and
sentence was entered on June 25, 2007. On January 27, 2009, Ramirez, pro se,
filed a motion for leave to file an untimely notice of appeal and an accompanying
notice of appeal. The district court denied Ramirez’s motion to file an untimely

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50087

notice of appeal and denied Ramirez leave to proceed in forma pauperis (IFP) on
appeal because his appeal failed to present a “good faith” non-frivolous issue for
appeal as required by 28 U.S.C. § 1915(a)(3) . Ramirez now seeks leave from this
court to proceed IFP on appeal. We construe Ramirez’s motion for leave to
proceed IFP as a challenge to the district court’s certification that his appeal was
not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997) (civil
case); United States v. Boutwell, 896 F.2d 884, 889-90 (5th Cir. 1990) (one-judge
order) (criminal case). Ramirez’s motion to file his brief in present form is
GRANTED.
Ramirez did not file a notice of appeal within ten days of the entry of the
judgment of conviction and sentence. See F ED. R. A PP. P. 4(b)(1)(A)(i). Although
F ED. R. A PP. P. 4(b)(4) provides for an extension of time upon a showing of
excusable neglect, Ramirez’s motion to file an untimely notice of appeal was filed
well beyond even this extended appeal period. Thus, the district court did not
err in enforcing the time limitations set forth in Rule 4(b), and this court may
not reverse its decision to do so. See United States v. Leijano-Cruz, 473 F.3d 571,
574 (5th Cir. 2006). Because the instant appeal is without arguable merit,
Ramirez’s motion to proceed IFP is DENIED and the appeal is DISMISSED as
frivolous. See 5 TH C IR. R. 42.2.
MOTION TO FILE BRIEF IN PRESENT FORM GRANTED; MOTION
FOR IFP DENIED; APPEAL DISMISSED.

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