* 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that this opinion should not be published and is not precedent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

May 21, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-51196

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL CENICEROS,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-03-CR-913-2-DB

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

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Manuel Ceniceros appeals his guilty-plea conviction for

conspiring to import marijuana into the United States in

violation of 21 U.S.C. §§ 952 and 960. Ceniceros argues that the

district court abused its discretion in denying his motion for an

extension of time to file a notice of appeal. As to the merits

of his appeal, he argues that the district court abused its

discretion when it overruled his request for new counsel at
No. 03-51196

-2-

sentencing without appointing new counsel and without holding a

hearing regarding the voluntariness of his plea.

The district court incorrectly found that it could not

consider Ceniceros’ motion for an extension of time under FED.

R. APP. P. 4(b)(4) because the motion was filed more than 40 days

after the judgment was entered. As the district court entered

its judgment on September 2, 2003, Ceniceros had 10 days,

excluding weekends, or until September 16, 2003, to file a timely

notice of appeal. See FED. R. APP. P. 4(b)(1) and 26(a)(2). On

October 15, 2003, within 30 days of the 10-day time period

expiring, Ceniceros filed a timely motion for an extension of

time to file a notice of appeal and a notice of appeal. See

United States v. Clark, 51 F.3d 42, 43 n.3 (5th Cir. 1995), and

United States v. Lewis, 921 F.2d 563, 565 (5th Cir. 1991); cf.

United States v. Montoya, 335 F.3d 73, 74-75 (2d Cir. 2003).

Given the district court’s finding that it could not

consider the motion, it did not address whether the circumstances

surrounding the late filing of Ceniceros’ notice of appeal

constituted excusable neglect. See FED. R. APP. P. 4(b)(4).

Ordinarily, under such circumstances, we would remand the case to

the district court so it could determine the excusable neglect

issue. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.

2000); United States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999). 

A remand would be futile, however, because the merits of this

appeal are frivolous. See Alvarez, 210 F.3d 309, 310 (5th Cir.
No. 03-51196

-3-

2000); see also United States v. Weathersby, 958 F.2d 65, 66 (5th

Cir. 1992).

The transcripts of Ceniceros’ rearraignment and sentencing

refute his assertion that his guilty plea was involuntary because

counsel told him that the Government would not pursue a career

offender enhancement at sentencing. Even assuming counsel did

make such a statement, Ceniceros acknowledged on numerous

occasions before the court accepted his plea that he could not

rely on any estimate of his sentence by counsel and that he could

not withdraw his plea if his sentence was higher than expected. 

Accordingly, the district court did not abuse its discretion in

not allowing Ceniceros to withdraw his guilty plea. See United

States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984). 

Neither did the district court abuse its discretion in

denying Ceniceros’ request for substitute counsel at sentencing. 

As Ceniceros knew that he could not rely on any estimate of his

sentence by counsel, he did not show good cause for changing

counsel at sentencing. See United States v. Young, 482 F.2d 993,

995 (5th Cir. 1973). We do not address whether counsel was

ineffective in representing Ceniceros as Ceniceros does not raise

this claim on appeal.

Ceniceros’ appeal is without arguable merit and frivolous. 

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is

therefore dismissed. See 5th Cir. R. 42.2. 

 APPEAL DISMISSED AS FRIVOLOUS.