United States v. Ernesto Avila

Case: 13-50803 Document: 00512598800 Page: 1 Date Filed: 04/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50803
Conference Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 16, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ERNESTO AVILA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-1501-1
Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Ernesto Avila 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). Avila
has filed a response. The record is insufficiently developed to allow
consideration at this time of Avila’s claim of ineffective assistance of counsel;
such a claim generally “cannot be resolved on direct appeal when the claim has
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50803 Document: 00512598800 Page: 2 Date Filed: 04/16/2014
No. 13-50803
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) (internal quotation marks and citation
omitted). We have reviewed counsel’s brief and the relevant portions of the
record reflected therein, as well as Avila’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. Avila’s motion for appointment of new counsel is DENIED.
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