* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 1, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

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

--------------------

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. 
No. 04-50676

-2-

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

-3-

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.