USA v. Cesar Armijo-Mercado
Filing
UNPUBLISHED OPINION FILED. [14-40758 Dismissed as Frivolous] Judge: ECP , Judge: PRO , Judge: JEG. Mandate pull date is 04/22/2015 for Appellant Cesar Armijo-Mercado; granting motion to withdraw as counsel filed by Mr. H. Michael Sokolow [7764102-2] [14-40758]
Case: 14-40758
Document: 00512988979
Page: 1
Date Filed: 04/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40758
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 1, 2015
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Lyle W. Cayce
Clerk
v.
CESAR ARMIJO-MERCADO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-557-1
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
The Federal Public Defender (FPD) appointed to represent Cesar ArmijoMercado 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). Armijo-Mercado has filed a response.
Included in Armijo-Mercado’s response is a claim that counsel was
ineffective for not arguing that Armijo-Mercado should receive a third point for
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40758
Document: 00512988979
Page: 2
Date Filed: 04/01/2015
No. 14-40758
acceptance of responsibility. We generally do not review claims of ineffective
assistance of counsel on direct appeal. United States v. Isgar, 739 F.3d 829,
841 (5th Cir.), cert. denied, 135 S. Ct. 123 (2014). However, this is one of those
“rare cases in which the record” permits us to “fairly evaluate the merits of the
claim.”
Id. (internal quotation marks and citations omitted).
The FPD
requested a third point for acceptance of responsibility in his objections to the
presentence report, and Armijo-Mercado received that point at sentencing.
Accordingly, Armijo-Mercado has not shown counsel was ineffective with
respect to the points assigned for acceptance of responsibility. See Strickland
v. Washington, 466 U.S. 668, 694 (1984). To the extent that Armijo-Mercado’s
response raises other claims of ineffective assistance of counsel, the record is
not sufficiently developed to allow us to make a fair evaluation of those claims;
we therefore decline to consider those claims without prejudice to collateral
review. See Isgar, 739 F.3d at 841.
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Armijo-Mercado’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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