USA v. Eleuterio Barrera, Jr.

Filing

UNPUBLISHED OPINION FILED. [13-50996 Dismissed as Frivolous and Remanded ] Judge: PEH , Judge: EHJ , Judge: SAH Mandate pull date is 02/05/2015 for Appellant Eleuterio Barrera Jr.; denying motion to appoint counsel filed by Appellant Mr. Eleuterio Barrera, Jr. [7795575-2]; granting motion to withdraw as counsel filed by Ms. Kimberly S. Keller [7589119-2] [13-50996]

Case: 13-50996

Document: 00512904259

Page: 1

Date Filed: 01/15/2015

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

No. 13-50996
Summary Calendar

FILED
January 15, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.

ELEUTERIO BARRERA, JR., also known as Teo, also known as Eleuterio
Barrera,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:12-CR-62-7
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Eleuterio Barrera, Jr., 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). Barrera has filed a response and has moved for appointment of
substitute counsel.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50996

Document: 00512904259

Page: 2

Date Filed: 01/15/2015

No. 13-50996
In his plea agreement, Barrera agreed generally to waive the right to
appeal his sentence, except that he reserved his right to appeal his sentence
on the grounds of ineffective assistance of counsel or prosecutorial misconduct
in violation of the Constitution. We agree with counsel that there is no
nonfrivolous argument regarding the enforceability of Barrera’s wavier. See
United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
Barrera does not argue in his response that the waiver is unenforceable.
Rather, he argues that his lawyer was ineffective in failing to object adequately
to an adjustment of his offense level based on his managerial role. We decline
to consider Barrera’s claim that counsel was ineffective, without prejudice to
Barrera’s right to seek collateral review, because the record is not sufficiently
developed to allow us to fairly evaluate that claim. See United States v. Isgar,
739 F.3d 829, 841 (5th Cir. 2014) (noting that it is “rare” that the “record allows
a reviewing court to fairly evaluate the merits of [an ineffectiveness] claim” on
direct appeal), cert. denied, 135 S. Ct. 123 (2014).
After reviewing counsel’s brief, the relevant portions of the record, and
Barrera’s response, we concur with counsel’s assessment that the appeal
presents no nonfrivolous issue for appellate review. Accordingly, counsel’s
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.
Barrera’s request for appointment of substitute counsel is DENIED.
Counsel asserts that the district court committed several clerical errors
by stating in the “Supervised Release” portion of the judgment: (1) that Barrera
should be evaluated for and permitted to attend the 500-Hour Intensive Drug
Abuse Education Program; (2) that Barrera should participate in all
appropriate counseling programs while incarcerated; and (3) that Barrera
should be incarcerated at “F.C.I. Three Rivers, Texas.” Counsel contends that

2

Case: 13-50996

Document: 00512904259

Page: 3

Date Filed: 01/15/2015

No. 13-50996
these statements do not pertain to conditions of supervised release and,
therefore, should have been placed in the “Imprisonment” portion of the
judgment. Barrera’s counsel has certified that the Government does not oppose
a limited remand to the district court for correction of the judgment. The case
is therefore REMANDED for the purpose of giving the district court an
opportunity to consider whether the judgment should be corrected. See FED.
R. CRIM. P. 36.

3