Case: 16-40474 Document: 00513774892 Page: 1 Date Filed: 11/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40474
Fifth Circuit
FILED
Cons. w/ No. 15-41076 November 28, 2016
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS ALVAREZ,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-96-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Jesus Alvarez has moved in these
consolidated appeals 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). Alvarez has filed a response.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40474 Document: 00513774892 Page: 2 Date Filed: 11/28/2016
No. 16-40474
Cons. w/ No. 15-41076
Included in Alvarez’s response is a claim that trial counsel and appellate
counsel were ineffective for failing to argue that the district court did not have
jurisdiction over his criminal proceedings because Congress does not have the
power under the Constitution to create federal crimes. We generally do not
review claims of ineffective assistance of counsel on direct appeal. United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). However, this is one of those
“rare cases in which the record” permits us to “fairly evaluate the merits of the
claim.” Id. (internal quotation marks and citations omitted). Alvarez was
convicted pursuant to the Controlled Substances Act (CSA), 21 U.S.C. §§ 846
and 841. The CSA was enacted pursuant to Congress’s authority under the
Commerce Clause. See Gonzales v. Raich, 545 U.S. 1, 12-22 (2005).
Accordingly, Alvarez has not shown a nonfrivolous issue regarding whether his
trial counsel or his appellate counsel was ineffective for failing to challenge the
district court’s jurisdiction over his criminal proceedings. See Strickland v.
Washington, 466 U.S. 668, 694 (1984).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Alvarez’s response. We concur with counsel’s
assessment that the appeals present no nonfrivolous issue for appellate review.
Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused
from further responsibilities herein, and the APPEALS ARE DISMISSED. See
5TH CIR. R. 42.2. Alvarez’s motion for transcripts and the appointment of new
counsel is DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th
Cir. 1998); see also United States v. Ramos, 390 F. App’x 425, 426 (5th Cir.
2010).
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