United States v. Gutierrez

Case: 19-11283 Document: 00515845925 Page: 1 Date Filed: 05/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 3, 2021
No. 19-11283
Lyle W. Cayce
Conference Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Gutierrez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-519-4
Before Davis, Elrod, and Oldham, Circuit Judges.
Per Curiam:*
The attorney appointed to represent Jose Gutierrez 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).
Gutierrez has filed a response. The record is not sufficiently developed to
*
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opinion should not be published and is not precedent except under the limited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: 19-11283 Document: 00515845925 Page: 2 Date Filed: 05/03/2021
No. 19-11283
allow us to make a fair evaluation of Gutierrez’s claim of ineffective
assistance of counsel; we therefore decline to consider the claim without
prejudice to collateral review. See United States v. Isgar, 739 F.3d 829, 841
(5th Cir. 2014).
We have reviewed counsel’s brief and the relevant portions of the
record reflected therein, as well as Gutierrez’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. Gutierrez’s
request for the appointment of new appellate counsel is DENIED as
untimely. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
2