USA v. Jose Carbajal-Soto, No. 11-40638 (5th Cir. 2012)
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Case: 11-40638 Document: 00511959214 Page: 1 Date Filed: 08/16/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-40638 August 16, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE ANTONIO CARBAJAL-SOTO, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-271-1 Before WIENER, ELROD, and SOUTHWICK, Circuit Judges. PER CURIAM:* A member of this panel previously carried with the case the Federal Public Defender s motion to withdraw as counsel and further ordered the filing of a supplemental Anders brief or a brief on the merits. The panel has considered the Federal Public Defender s motion for reconsideration. IT IS ORDERED that the motion is GRANTED. IT IS FURTHER ORDERED that the motion for an extension of 30 days from the date of this ruling to file appellant s brief is DENIED AS MOOT. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40638 Document: 00511959214 Page: 2 Date Filed: 08/16/2012 No. 11-40638 The Federal Public Defender appointed to represent Jose Antonio Carbajal-Soto has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Carbajal-Soto has filed a response, which includes a claim of ineffective assistance of counsel. The record is insufficiently developed to allow consideration at this time of Carbajal-Soto s claim of ineffective assistance of counsel; such a claim generally cannot be resolved on direct appeal when the claim has 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) (quotation marks and citation omitted). We have reviewed counsel s brief and the relevant portions of the record reflected therein, as well as Carbajal-Soto s response. We concur with counsel s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Carbajal-Soto s motion for the appointment of counsel is DENIED.
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