Case: 21-10312 Document: 00516139784 Page: 1 Date Filed: 12/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 21, 2021
No. 21-10312
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Alexis Gonzalez-Banales,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:20-CR-43-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
The Federal Public Defender (FPD) appointed to represent Alexis
Gonzalez-Banales 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
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10312 Document: 00516139784 Page: 2 Date Filed: 12/21/2021
No. 21-10312
v. Flores, 632 F.3d 229 (5th Cir. 2011). Gonzalez-Banales has filed a pro se
response.
In his response, Gonzalez-Banales raises several claims challenging his
sentence. However, those claims are barred by the waiver-of-appeal
provision in Gonzalez-Banales’s plea agreement. They have no bearing on
the validity of Gonzalez-Banales’s guilty plea or waiver of appeal and do not
fall within any exception to the waiver.
Gonzalez-Banales also asserts that he was denied the effective
assistance of counsel at trial and on appeal. A 28 U.S.C. § 2255 proceeding
is the favored forum for litigating a federal prisoner’s claims of ineffective
assistance of counsel. Massaro v. United States, 538 U.S. 500, 503-09 (2003).
We will consider a claim of ineffective assistance of counsel on direct appeal
“only in rare cases in which the record allows [us] to fairly evaluate the merits
of the claim.” United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014)
(internal quotation marks and citation omitted).
The record is not sufficiently developed to allow us to make a fair
evaluation of Gonzalez-Banales’s claim that he was denied the effective
assistance of trial counsel because his attorney failed to object to the district
court’s imposition of an upward variance based on his “history and
characteristics” and “other criminal conduct.” We decline to consider that
claim without prejudice to collateral review. See id.
It is clear from the record that Gonzalez-Banales’s claim that he was
denied the effective assistance of appellate counsel does not present a
nonfrivolous issue for appeal. Gonzalez-Banales complains that the FPD was
ineffective because he did not raise the claims set out in his pro se response.
However, appellate counsel is not deficient for failing to raise claims that are
barred by an appeal waiver or are inappropriate for consideration on direct
review. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
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Case: 21-10312 Document: 00516139784 Page: 3 Date Filed: 12/21/2021
No. 21-10312
Having reviewed counsel’s brief, Gonzalez-Banales’s response, and
the relevant portions of the record, 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.
3