United States v. Jorge Perez-Toj

Case: 10-40053 Document: 00511274760 Page: 1 Date Filed: 10/26/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED

October 26, 2010 No. 10-40053

Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee v.

JORGE OSWALDO PEREZ-TOJ,

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:09-CR-1204-1

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

The Federal Public Defender appointed to represent Jorge Oswaldo Perez- Toj has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Perez-Toj has filed a response. The record is insufficiently developed to allow consideration at this time of Perez- Toj’s claims 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 no opportunity existed to develop the record on the merits of Case: 10-40053 Document: 00511274760 Page: 2 Date Filed: 10/26/2010 No. 10-40053 the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). Our independent review of the record, counsel’s brief, and Perez-Toj’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2.