USA v. Cesar Armijo-Mercado

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UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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