USA v. Heriberto Duque, Jr., No. 09-10856 (5th Cir. 2010)

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Case: 09-10856 Document: 00511093893 Page: 1 Date Filed: 04/28/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-10856 Summary Calendar April 28, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. HERIBERTO DUQUE, JR., Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 6:09-CR-2-2 Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Heriberto Duque, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Duque has filed a response. The record is insufficiently developed to allow consideration at this time of Duque s claims 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 develop the record on the merits of the allegations. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-10856 Document: 00511093893 Page: 2 No. 09-10856 Date Filed: 04/28/2010 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 Duque s response discloses no nonfrivolous issue for appeal. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2. Duque s motion for the appointment of substitute counsel is DENIED. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). 2

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