USA v. Gardea-Carrasco, No. 07-50951 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-50951 Summary Calendar June 9, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. GRACIELO GARDEA-CARRASCO Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:00-CR-141-4 Before WIENER, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:* The attorney appointed to represent Gracielo Gardea-Carrasco has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Gardea-Carrasco has filed a motion for appointment of counsel, and his motion challenges his sentence and the alleged ineffective assistance of counsel in connection with his sentencing proceeding. The record is insufficiently developed to allow consideration at this time of * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. No. 07-50951 Gardea-Carrasco 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. 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 GardeaCarrasco s motion discloses no nonfrivolous issue for appeal. Accordingly, counsel s 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. Gardea-Carrasco s motion for appointment of counsel is DENIED. The record does reveal a clerical error in the judgment. See F ED. R. C RIM. P. 36. The written judgment reflects that Gardea-Carrasco was convicted of conspiring to possess with intent to distribute marijuana in excess of 1,000 kilograms. Gardea-Carrasco pleaded guilty, however, to conspiring to possess with intent to distribute marijuana in excess of only 100 kilograms. This matter is REMANDED for correction of the clerical error pursuant to F ED. R. C RIM. P. 36. 2
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