United States v. Gerardo Perez

Case: 09-40707 Document: 00511064076 Page: 1 Date Filed: 03/26/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 26, 2010 No. 09-40707 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. GERARDO RAFAEL PEREZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:09-CR-356-1 Before KING, STEWART and HAYNES, Circuit Judges. PER CURIAM:* The attorney appointed to represent Gerardo Rafael Perez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Perez has filed a response. The record is insufficiently developed to allow consideration at this time of Perez’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. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40707 Document: 00511064076 Page: 2 Date Filed: 03/26/2010 No. 09-40707 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 Perez’s response discloses no nonfrivolous issue for appeal. Accordingly, the 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. Perez’s motion for the appointment of substitute counsel is DENIED. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). 2