United States v. Upchurch

Case: 21-50810 Document: 00516313681 Page: 1 Date Filed: 05/10/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 10, 2022 No. 21-50810

Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Gary Upchurch,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 7:21-CR-81-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

The attorney appointed to represent Gary Upchurch 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). Upchurch has filed a response. The record is not sufficiently developed to Case: 21-50810 Document: 00516313681 Page: 2 Date Filed: 05/10/2022

No. 21-50810 allow us to make a fair evaluation of Upchurch’s claim of ineffective assistance of counsel; we therefore decline to consider the claim without prejudice to collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).

We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Upchurch’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. Upchurch’s request for the appointment of counsel is DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).