USA v. J. Aboytes-Malagon


UNPUBLISHED OPINION FILED. [10-41282 Dismissed as Frivolous] Judge: PEH , Judge: EBC , Judge: JWE Mandate pull date is 09/06/2011 for Appellant J. Jesus Aboytes-Malagon; granting motion to withdraw as counsel filed by Ms. Rebekah Rae Syck, Esq. [6789554-2] [10-41282]

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Case: 10-41282 Document: 00511573579 Page: 1 Date Filed: 08/16/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-41282 Conference Calendar August 16, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. J. JESUS ABOYTES-MALAGON, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:10-CR-833-1 Before HIGGINBOTHAM, CLEMENT, and ELROD, Circuit Judges. PER CURIAM:* The attorney appointed to represent J. Jesus Aboytes-Malagon 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). Aboytes-Malagon has filed a response. The record is insufficiently developed to allow consideration at this time of Aboytes-Malagon’s claim of ineffective assistance of counsel; such a claim generally “cannot be resolved on direct appeal when the claim has not been raised before the district court since * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41282 Document: 00511573579 Page: 2 Date Filed: 08/16/2011 No. 10-41282 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 Aboytes-Malagon’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. 2

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