United States v. Archuleta-Valerio

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-50676
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE MARIA ARCHULETA-VALERIO, also known as Chemin,
also known as Jose Luis Archuleta
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:99-CR-727-3-DB
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Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Maria Archuleta-Valerio seeks to appeal his guilty-plea
conviction of conspiring to possess with the intent to distribute
marijuana. He argues that the district court abused its
discretion in denying his motion for an extension of time to file
a notice of appeal from the final judgment.
Archuleta-Valerio did not file a timely notice of appeal
from the final judgment or from the district court’s denial of
his motion for an extension of time to file a notice of appeal.
*
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this opinion should not be published and is not precedent except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. 04-50676
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See United States v. Merrifield, 764 F.2d 436, 437 (5th Cir.
1985) (holding that a timely notice of appeal is a mandatory
precondition to the exercise of appellate jurisdiction); FED.
R. APP. P. 4(b)(1)(A), 26(a)(2). Archuleta-Valerio did file a
pro se document that could possibly be construed as an untimely
notice of appeal from the district court’s denial of his motion
to extend the time for filing a notice of appeal from the final
judgment of conviction and sentence, and thus, a motion for an
extension of time to file a notice of appeal from that order.
However, we pretermit deciding whether the document should be so
construed or whether we should remand the case to district court
for a determination of excusable neglect for the failure to file
a timely notice of appeal. See United States v. Alvarez, 210
F.3d 309, 310 (5th Cir. 2000); United States v. Weathersby, 958
F.2d 65, 66 (5th Cir. 1992). Even if Archuleta-Valerio obtained
an extension of time to file a notice of appeal from the district
court’s denial of his motion to extend the time for filing a
notice of appeal from the final judgment of conviction and
sentence and then demonstrated on appeal that the district court
abused its discretion in denying that motion, his challenge to
the validity of his guilty plea lacks merit.
Archuleta-Valerio contends that his guilty plea was not
knowingly and voluntarily entered because the district court did
not inform him that he had a right to persist in his not guilty
plea and that he had a right to have counsel appointed to
No. 04-50676
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represent him at trial. Archuleta-Valerio has not demonstrated
that there exists a “reasonable probability that, but for the
error, he would not have entered the plea.” United States v.
Dominguez Benitez, 542 U.S. 74, , 124 S. Ct. 2333, 2340
(2004).
The judgment of the district court is AFFIRMED. The
Government’s motion to file a supplemental brief is DENIED as
unnecessary.