United States v. Alegria-Campa ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2005
Charles R. Fulbruge III
Clerk
No. 03-60457
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALEGRIA-CAMPA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CR-126-1
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Counsel appointed to represent Jose Alegria-Campa
(“Alegria”) has filed a motion seeking leave to withdraw and a
brief as required by Anders v. California, 386 U.S. 738 (1967).
Counsel has also filed a motion to waive the requirements of FED.
R. APP. P. 32(a)(4). This appeal is before the court following
remand to the district court to address a jurisdictional issue.
See United States v. Alegria-Campa, No. 03-60457 (5th Cir.
Oct. 7, 2004) (unpublished).
*
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this opinion should not be published and is not precedent except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. 03-60457
-2-
Alegria’s original notice of appeal was not filed within 10
days of the entry of the judgment as required by FED. R. APP.
P. 4(b)(1)(A). The district court determined that Alegria failed
to show good cause or excusable neglect justifying an extension
of the time for filing a notice of appeal. See FED. R. APP. P.
4(b)(4); United States v. Golding, 739 F.2d 183, 184 (5th Cir.
1984). Alegria filed a timely notice of appeal from the district
court’s order, but counsel has not briefed whether that finding
constitutes an abuse of discretion.
We pretermit further briefing on the jurisdictional issue
because we find that the appeal waiver contained in the plea
agreement bars Alegria’s appeal. Cf. United States v. Alvarez,
210 F.3d 309, 310 (5th Cir. 2000) (dismissing for lack of
jurisdiction, rather than remanding for determination of
excusable neglect or good cause, because appeal was frivolous).
An appeal precluded by an appeal waiver “should be dismissed.”
United States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002).
Accordingly, the appeal is DISMISSED FOR LACK OF
JURISDICTION. Counsel’s outstanding motions are DENIED AS MOOT.