USA, et al v. Carlos Leiva, No. 14-40288 (5th Cir. 2014)

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Case: 14-40288 Document: 00512871341 Page: 1 Date Filed: 12/16/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-40288 Conference Calendar United States Court of Appeals Fifth Circuit FILED December 16, 2014 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. CARLOS ENRIQUE LEIVA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:13-CR-968-1 Before KING, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * The Federal Public Defender (FPD) appointed to represent Carlos Enrique Leiva 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). Leiva has filed a response and moves to have his sentence vacated. The record is not sufficiently developed to allow us to make a fair evaluation of Leiva’s claim of ineffective assistance of counsel; 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 14-40288 Document: 00512871341 Page: 2 Date Filed: 12/16/2014 No. 14-40288 we therefore decline to consider the claim without prejudice to Leiva’s ability to raise the claim on collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.), cert. denied, 135 S. Ct. 123 (2014). We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Leiva’s response. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, Leiva’s pro se motions to vacate his sentence and to have his case remanded for resentencing are DENIED, the FPD’s 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. 2

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