United States v. De Ochoa

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 23, 2007

Charles R. Fulbruge III
Clerk
No. 04-20955
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISIDORO RAFAEL DE OCHOA,
Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-16-1
--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

The attorney appointed to represent Isidoro Rafael De Ochoa

has moved for leave to withdraw from this direct appeal and has

filed a brief as required by Anders v. California, 386 U.S. 738

(1967). De Ochoa has received a copy of counsel’s motion and has

filed a pro se motion seeking to enforce the plea agreement, which

we construe as a response to the Anders motion. De Ochoa contends,

inter alia, that his trial counsel committed certain errors that

affected his guilty plea and waiver of appeal, which we construe as

asserting claims of ineffective assistance of counsel. We conclude

*
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this opinion should not be published and is not precedent except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. 04-20955
-2-

that the record is insufficiently developed to allow consideration

on direct appeal of these claims of ineffective assistance of

counsel. See United States v. Brewster, 137 F.3d 853, 859 (5th

Cir. 1998). To the extent that De Ochoa raises other arguments

regarding the voluntariness of his guilty plea and waiver, his

arguments are without merit.

Our independent review of counsel’s brief, De Ochoa’s

response, and the record discloses no nonfrivolous issues for

appeal. 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. To the extent that De

Ochoa’s motion seeks to enforce the plea agreement, it is DENIED.

This ruling is without prejudice to De Ochoa’s right to raise his

ineffective assistance of counsel claims in a 28 U.S.C. § 2255

proceeding to the extent that such claims are not precluded by his

waiver.