IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40737

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANTONIO IBARRA-OLVERA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:10-CR-1795-3

Before DeMOSS, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

Antonio Ibarra-Olvera (Ibarra) appeals his guilty plea conviction on one 

count of aiding and abetting the transportation of an alien within the United

States for the purpose of commercial advantage or private financial gain. He

argues that his guilty plea is invalid because the district court did not correctly

advise him of the maximum term of imprisonment for his offense.

The Government asserts in its brief that the appeal should be dismissed

because Ibarra did not timely notice his appeal. The Government indicates that

United States Court of Appeals

Fifth Circuit

F I L E D

November 26, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-40737

it does not intend to waive or forfeit the requirement that a timely notice of

appeal be filed.

A defendant in a criminal case generally has 14 days from the entry of the

judgment on the criminal docket to file a notice of appeal. FED. R. APP.

P. 4(b)(1)(A)(i), (b)(6). This time limit is mandatory but not jurisdictional. 

United States v. Martinez, 496 F.3d 387, 388 (5th Cir. 2007). A district court

may extend the time “for a period not to exceed 30 days from the expiration of

the time otherwise prescribed” based on a finding of excusable neglect or good

cause. FED. R. APP. P. 4(b)(4).

The district court’s judgment was entered on March 14, 2011. No earlier

than June 27, 2011, the day he signed it, Ibarra filed a pro se notice of appeal. 

See FED. R. APP. P. 4(c). On August 2, 2011, the magistrate judge granted

Ibarra’s appointed trial counsel leave to withdraw, granted Ibarra leave to

proceed in forma pauperis (IFP) on appeal, and appointed an attorney to

represent Ibarra on appeal.

Ibarra contends that he did not receive actual notice of the judgment until

May 27, 2011, and he asserts that the 14-day period for filing a notice of appeal

did not begin until he received notice of the judgment. He argues that the notice

of appeal was filed within the time allowed under Rule 4(b) for requesting an

extension of time to file a notice of appeal.

These contentions are without merit. The plain language of Rule 4

provides that the time for filing a notice of appeal runs from “the entry of either

the judgment or the order being appealed,” FED. R. APP. P. 4(b)(1)(A)(i), and it

carefully defines entry of a judgment “for purposes of this Rule 4(b)” as occurring

“when it is entered on the criminal docket.” FED. R. APP. P. 4(b)(6). As noted

above, the judgment was entered on March 14, 2011, and the notice of appeal

was filed on June 27, 2011. The notice of appeal was untimely filed.

Ibarra also argues that the magistrate judge’s decision to appoint counsel

constituted an implicit finding of excusable neglect. See FED. R. APP. P. 4(b)(4). 

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This court has held that a district court’s order appointing counsel amounted to

such a finding where the defendant requested appointment of counsel within the

time period specified under Rule 4(b)(4). See e.g., United States v. GarciaPaulin, 627 F.3d 127, 130 n.1 (5th Cir. 2010); United States v. Lister, 53 F.3d 66,

68 (5th Cir. 1995); United States v. Quimby 636 F.2d 86, 89 (5th Cir. 1981). In

contrast to such cases, however, in the instant matter the magistrate judge’s

order granting leave to appeal IFP and appointing appellate counsel could not

constitute an extension of time to appeal because both Ibarra’s notice of appeal

and the magistrate judge’s ruling appointing appellate counsel came after the

expiration of the time for filing a notice of appeal under Rule 4(b)(4). Ibarra

therefore cannot benefit from Rule 4(b)(4).

In view of the foregoing, Ibarra’s appeal is DISMISSED due to his failure

to file a timely notice of appeal.

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