Case: 17-10288 Document: 00514196537 Page: 1 Date Filed: 10/16/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-10288 FILED
Summary Calendar October 16, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JONATHAN LOVATO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:16-CR-41-3
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Jonathan Lovato 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).
The brief indicates that the only potential nonfrivolous issues for appeal are
barred by the appeal waiver contained within the plea agreement to which
Lovato voluntarily agreed. The brief does raise one potentially nonfrivolous
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10288 Document: 00514196537 Page: 2 Date Filed: 10/16/2017
No. 17-10288
claim for ineffective assistance of counsel related to the failure to object to a
possible error in the Guidelines calculation, but notes that claims for
ineffective assistance should generally be raised on collateral review rather
than direct appeal.
Lovato has filed a response to the brief and requests the opportunity to
file a brief on the merits pro se. He contends that his plea agreement was not
voluntary in light of alleged ineffective assistance of counsel at the plea stage;
that the district court made several errors in calculating his Guidelines
sentence; that his trial counsel rendered ineffective assistance in failing to
object to errors in the Guidelines calculation; and that his sentence is
substantively unreasonable.
We have reviewed counsel’s brief, the relevant portions of the record, and
Lovato’s response, and we concur with counsel’s assessment. The record is not
sufficiently developed to allow us to make a fair evaluation of Lovato’s claims
of ineffective assistance of counsel. Accordingly, we decline to consider his
ineffective-assistance claims without prejudice to his right to pursue relief on
collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014)
(noting that the record is rarely sufficient to permit review of ineffective-
assistance claims on direct appeal and declining to consider claims without
prejudice to collateral review). Furthermore, any other potentially
nonfrivolous challenges are barred by the plea agreement. 1
Finally, Lovato’s request to proceed pro se is untimely because it was
filed after counsel filed the Anders brief. See United States v. Wagner, 158 F.3d
1As explained in counsel’s Anders brief and evidenced by the record, Lovato’s guilty
plea appears to have satisfied the requirements of Fed. R. Crim. P. 11. While Lovato now
challenges the voluntariness of his plea on the ground that it was the result of ineffective
assistance of counsel, the record is insufficient to permit us to evaluate that claim. As stated
above, any such challenge should be brought on collateral review.
2
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No. 17-10288
901, 902-03 (5th Cir. 1998) (holding that a request to proceed pro se is not
timely when made after appointed counsel has filed an Anders brief).
Accordingly, the motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, Lovato’s motion to proceed pro se
is DENIED, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
3