USA v. Smirl, No. 07-10888 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-10888 Conference Calendar August 20, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. LYNN SMIRL Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:07-CR-3-16 Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* The attorney appointed to represent Lynn Smirl has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Smirl has filed a response. The record is insufficiently developed to allow consideration at this time of Smirl s claim of ineffective assistance of counsel; such claims generally cannot be resolved on direct appeal when [they have] not been raised before the district court since no opportunity existed to * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10888 develop the record on the merits of the allegations. United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). Our independent review of the record, counsel s brief, and Smirl s response discloses no nonfrivolous issue for appeal. Accordingly, counsel s motion for leave to withdraw is GRANTED, his motion for the appointment of substitute counsel is DENIED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2

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