USA v. Alejandro Tovar

Filing

UNPUBLISHED OPINION FILED. [11-20836 Dismissed as frivolous] Judge: PEH , Judge: JES , Judge: JEG Mandate pull date is 09/10/2013 for Appellant Alejandro Tovar; denying motion to appoint counsel filed by Appellant Mr. Alejandro Tovar [7305287-2]; granting motion to withdraw as counsel filed by Mr. Robert Michael Rosenberg [7142713-2] [11-20836]

Case: 11-20836

Document: 00512346679

Page: 1

Date Filed: 08/20/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-20836
Conference Calendar

August 20, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEJANDRO TOVAR,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-106-1

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Alejandro Tovar has moved for leave
to withdraw and has filed briefs in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Tovar
has filed a response.

The record is insufficiently developed to allow

consideration at this time of Tovar’s claims of ineffective assistance of counsel;
such claims generally “cannot be resolved on direct appeal when [they have] not
been raised before the district court since no opportunity existed to develop the
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20836

Document: 00512346679

Page: 2

Date Filed: 08/20/2013

No. 11-20836
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 briefs and the relevant portions of the record
reflected therein, as well as Tovar’s response. The Government did not breach
the plea agreement. 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. Tovar’s motion
for appointment of new counsel is DENIED.

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