USA v. J. Aboytes-Malagon

Filing

UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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