United States v. John Simmons ( 2010 )

Case: 10-50033 Document: 00511143003 Page: 1 Date Filed: 06/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2010
No. 10-50033
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN SIMMONS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CR-337-7
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
John Simmons pleaded guilty to distribution of 50 grams of more of
methamphetamine and aiding and abetting. He was sentenced to 151 months
of imprisonment and four years of supervised release. Over six months after the
entry of judgment, Simmons, acting pro se, moved for an extension of time to file
an appeal, filed a notice of appeal, and moved for the appointment of appellate
counsel. The district court denied Simmons’s motion for an extension of time
because it was not filed within 30 days of the expiration of his appeal period, as
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50033 Document: 00511143003 Page: 2 Date Filed: 06/15/2010
No. 10-50033
required by F ED. R. A PP. P. 4(b)(4). The district court dismissed Simmons’s
motion for appointment of counsel. Counsel who had been appointed to
represent Simmons in the district court thereafter moved to withdraw, and the
district court granted counsel’s motion.
Simmons now moves this court for the appointment of counsel. 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. Simmons did not file a
notice of appeal within the limitations period under F ED. R. A PP. P. 4(b)(1)(A),
and his motion for an extension of time to file an appeal was filed beyond the
time limitations set forth under F ED. R. A PP. P. 4(b)(4). Simmons 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). Because the instant appeal
is without arguable merit, Simmons’s motion for appointment of counsel is
DENIED, and the appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2.
2