United States v. Andrade ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40924
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO ANDRADE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-91-CR-236-1
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June 17, 1997
Before SMITH, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Gustavo Andrade, #57391-079, has appealed the denial of his
“Motion to Reduce Sentence and to Correct an Illegal Sentence
Pursuant to Federal Rule of Criminal Procedure Rule 35(a)(1).”
The notice of appeal was not filed within ten days of entry of
judgment. See Fed. R. App. P. 4(b). It would be futile for this
court to remand to the district court to determine whether there
was excusable neglect in filing the late notice of appeal, see
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-40924
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United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984),
because even if there is excusable neglect and the appeal is
timely, we would dismiss the appeal as frivolous. The district
court had no jurisdiction to entertain the Rule 35 motion.
United States v. Early, 27 F.3d 140, 141-142 (5th Cir.), cert.
denied, 115 S. Ct. 600 (1994).
DISMISSED.