United States v. Florentino Tovar-Rivas ( 2011 )

Case: 09-50489 Document: 00511639669 Page: 1 Date Filed: 10/20/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2011
No. 09-50489
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FLORENTINO TOVAR-RIVAS; ROBERTO GARCIA-VALLES,
Defendants-Appellants
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CR-448-6
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Following a jury trial, Florentino Tovar-Rivas (Tovar) and Roberto Garcia-
Valles (Garcia) were convicted of conspiracy to possess with the intent to
distribute cocaine and of possession with the intent to distribute cocaine.
Tovar’s counsel, the Federal Public Defender (FPD), raises a single issue on
appeal. Counsel argues that 21 U.S.C. § 841(b)(1)(A), the statute under which
Tovar was convicted, is unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). The FPD concedes that this argument is foreclosed by this
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50489 Document: 00511639669 Page: 2 Date Filed: 10/20/2011
No. 09-50489
court’s precedent in United States v. Slaughter, 238 F.3d 580, 582-84 (5th Cir.
2000), and he raises the issue solely to preserve it for possible further review.
Because Tovar’s argument is foreclosed, the Government’s motion for summary
affirmance is GRANTED, its alternative motion for an extension of time is
DENIED as unnecessary, and the judgment of the district court is AFFIRMED.
Garcia’s appointed counsel 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). Garcia has filed a response.
Insofar as Garcia argues that his counsel was ineffective, the general rule in this
circuit is that a claim of ?ineffective assistance of counsel 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). Because the
present record is not sufficiently developed and Garcia has not even identified
an issue for appeal, we will not consider Garcia’s claim on direct appeal.
Cantwell, 470 F.3d at 1091.
We have reviewed counsel’s brief, Garcia’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, counsel’s
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.
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