IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10925
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANSICO PENA, also known as Paco,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-266-13-X
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Appointed counsel for Pena has moved to supplement the
record with the transcript of rearraignment. The motion to
supplement is GRANTED.
Appointed counsel for Fransico Pena has also moved for leave
to withdraw and has filed a brief as required by Anders v.
California, 386 U.S. 738 (1967). Pena received a copy of
counsel’s motion and brief and has filed a response. Among other
*
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that this opinion should not be published and is not precedent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. 01-10925
-2-
things, Pena alleges ineffective assistance of counsel at the
plea and at sentencing. Pena did not waive appeal of ineffective
assistance of counsel claims either on direct appeal or in a
proceeding under 28 U.S.C § 2255. This issue cannot be decided
on direct appeal because the record is inadequate for this court
to evaluate the claims. United States v. Fry, 51 F.3d 543, 545
(5th Cir. 1995); United States v. Higdon, 832 F.2d 312, 314 (5th
Cir. 1987).
Our independent review of the brief, the remaining issues
raised in Pena’s response, and the record discloses no
nonfrivolous issue. Accordingly, counsel’s motion for leave to
withdraw is GRANTED, counsel is excused from further
responsibilities herein. Pena’s motion to dismiss counsel and
for an extension of time are DENIED. See United States v.
Wagner, 158 F.3d 901, 902 (5th Cir. 1998). The APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.