IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2009
No. 07-50951
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GRACIELO GARDEA-CARRASCO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:00-CR-141-4
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Gracielo Gardea-Carrasco has moved
for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Gardea-Carrasco has filed a motion for
appointment of counsel, and his motion challenges his sentence and the alleged
ineffective assistance of counsel in connection with his sentencing proceeding.
The record is insufficiently developed to allow consideration at this time of
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-50951
Gardea-Carrasco’s claims of ineffective assistance of counsel; such claims
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).
Our independent review of the record, counsel’s brief, and Gardea-
Carrasco’s motion 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. Gardea-Carrasco’s motion for appointment of counsel is DENIED. The
record does reveal a clerical error in the judgment. See F ED. R. C RIM. P. 36. The
written judgment reflects that Gardea-Carrasco was convicted of conspiring to
possess with intent to distribute marijuana in excess of 1,000 kilograms.
Gardea-Carrasco pleaded guilty, however, to conspiring to possess with intent
to distribute marijuana in excess of only 100 kilograms. This matter is
REMANDED for correction of the clerical error pursuant to F ED. R. C RIM. P. 36.
2