USA v. Rascon

Filing 920090818

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-50809 Conference Calendar August 18, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. RUBEN GASTELUM RASCON, also known as Ruben Gastelum-Rascon, also known as Jesus Lopez-Macias, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-3228-ALL

Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* The attorney appointed to represent Ruben Gastelum Rascon has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Gastelum Rascon has filed a response and requested the appointment of new counsel. The record is insufficiently

developed to allow consideration at this time of Gastelum Rascon's claim of ineffective assistance of counsel; such claims generally "cannot be resolved on

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

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No. 08-50809 direct appeal when [they have] 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). Our independent review of the record, counsel's brief, and Gastelum Rascon's response discloses no nonfrivolous issue for appeal. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, Gastelum Rascon's motion for appointment of new counsel is DENIED, and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2.

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