Case: 11-40638 Document: 00511959214 Page: 1 Date Filed: 08/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 16, 2012
No. 11-40638
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ANTONIO CARBAJAL-SOTO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-271-1
Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
A member of this panel previously carried with the case the Federal Public
Defender’s motion to withdraw as counsel and further ordered the filing of a
supplemental Anders brief or a brief on the merits. The panel has considered the
Federal Public Defender’s motion for reconsideration. IT IS ORDERED that the
motion is GRANTED.
IT IS FURTHER ORDERED that the motion for an extension of 30 days
from the date of this ruling to file appellant’s brief is DENIED AS MOOT.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40638 Document: 00511959214 Page: 2 Date Filed: 08/16/2012
No. 11-40638
The Federal Public Defender appointed to represent Jose Antonio
Carbajal-Soto 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). Carbajal-Soto has filed a response, which
includes a claim of ineffective assistance of counsel. The record is insufficiently
developed to allow consideration at this time of Carbajal-Soto’s claim of
ineffective assistance of counsel; such a claim generally “cannot be resolved on
direct appeal when the claim has 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) (quotation marks
and citation omitted). We have reviewed counsel’s brief and the relevant
portions of the record reflected therein, as well as Carbajal-Soto’s response. We
concur with counsel’s assessment that the appeal presents no nonfrivolous issue
for appellate review. 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. Carbajal-Soto’s motion for the
appointment of counsel is DENIED.