Case: 09-40519 Document: 00511085749 Page: 1 Date Filed: 04/20/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 20, 2010 No. 09-40519 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. KENNETH MARTIN APGAR, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:08-CR-534-1

Before SMITH, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:* The attorney appointed to represent Kenneth Martin Apgar has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Apgar has filed a response, in which he makes a request for appointment of substitute counsel. Our independent review of the record, counsel’s brief, and Apgar’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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40519 Document: 00511085749 Page: 2 Date Filed: 04/20/2010 No. 09-40519 See 5 TH C IR. R. 42.2. Apgar’s motion for appointment of substitute counsel is DENIED. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).