USA v. Garcia-Orrantia, No. 08-50811 (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. 08-50811 Conference Calendar June 16, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. OLAYA GARCIA-ORRANTIA, also known as Sandra Garcia Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-720-ALL Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* The attorney appointed to represent Olaya Garcia-Orrantia has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Garcia-Orrantia has filed a response in which she moves for the appointment of new appellate counsel and alleges ineffective assistance of plea counsel and appellate counsel. The record is insufficiently developed to allow consideration at this time of Garcia-Orrantia s claim of ineffective assistance of counsel; such claims * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50811 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). Because she waited until after an Anders brief was filed, Garcia-Orrantia s motion for appointment of new counsel is DENIED as untimely. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). Our independent review of the record, counsel s brief, and GarciaOrrantia s response 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. 2

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