United States v. Ramirez , 357 F. App'x 595 ( 2009 )


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  •            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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    2
    

Document Info

Docket Number: 09-50087

Citation Numbers: 357 F. App'x 595

Judges: Garza, Clement, Owen

Filed Date: 12/16/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024