text:           IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                    Fifth Circuit
  
                                                                    FILED
                                                                   April 25, 2008
                                  No. 07-40011
                                Summary Calendar               Charles R. Fulbruge III
                                                                       Clerk
  
  UNITED STATES OF AMERICA
  
                                             Plaintiff-Appellee
  
  v.
  
  LUIS ALEJANDRO GARZA
  
                                             Defendant-Appellant
  
  
                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:00-CR-36-1
  
  
  Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
  PER CURIAM:*
        Luis Alejandro Garza was convicted by a jury of conspiracy to possess with
  intent to distribute more than five kilograms of cocaine, possession with intent
  to distribute more than five kilograms of cocaine, and aiding and abetting others
  in the possession with intent to distribute more than 500 grams of cocaine. The
  district court sentenced Garza to serve concurrent 324-month terms of
  imprisonment to be followed by concurrent five-year (counts one, two and three)
  and four-year (count four) terms of supervised release.
  
        *
        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  should not be published and is not precedent except under the limited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. 07-40011
  
        Garza timely filed a notice of appeal, but we dismissed his appeal for
  failure to prosecute. Garza subsequently filed a motion pursuant to 28 U.S.C.
  § 2255 in which he asked the district court for permission to file an out-of-time
  appeal. Although the district court granted Garza’s motion, it did not reenter
  the criminal judgment against Garza. Thus, Garza’s instant notice of appeal
  was filed more than six years after the original criminal judgment was entered
  against him and is untimely. See FED. R. CRIM. P. 4(b)(1)(A). However, the time
  limit for filing a criminal appeal is not jurisdictional and can be waived. United
  States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007).           Because the
  Government did not oppose Garza’s out-of-time appeal, it has waived application
  of Rule 4(b). Accordingly, we may address the merits of Garza’s claims.
        Garza argues for the first time on appeal that his sentence is invalid
  because the district court imposed a sentence under the mandatory federal
  guideline sentencing scheme and enhanced Garza’s sentence on the basis of facts
  not admitted by Garza or found by the jury beyond a reasonable doubt. We
  review for plain error. United States v. Mares, 402 F.3d 511, 513, 520-22 (5th
  Cir. 2005). Garza is unable to establish plain error with regard to his claims
  because he cannot establish that being sentenced under a mandatory guidelines
  scheme affected his substantial rights. The record does not indicate that the
  district court “would have reached a significantly different result” under a
  sentencing scheme in which the Sentencing Guidelines were advisory only. See
  Mares, 402 F.3d at 520-22.
        Garza also argues that the district court reversibly erred when it denied
  his motion for a new trial, arguing that the district court admitted inadmissible
  evidence under Rule 404(b) of the Federal Rules of Evidence. We review the
  denial of a motion for a new trial for abuse of discretion. When inadmissible
  Rule 404(b) evidence is introduced, a new trial is warranted if after reviewing
  the record there is a significant possibility that the prejudicial evidence had a
  substantial impact on the verdict. United States v. Honer, 225 F.3d 549, 555 (5th
  
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                                    No. 07-40011
  
  Cir. 2000). The record reflects that overwhelming direct and circumstantial
  evidence of Garza’s guilt was presented at trial. In light of the record, there is
  no significant possibility that the alleged 404(b) evidence had any impact on the
  verdict. Accordingly, Garza has failed to establish that the district court abused
  its discretion in denying his motion for a new trial.
        AFFIRMED.
  
  
  
  
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