     Case: 16-10248      Document: 00513805086         Page: 1    Date Filed: 12/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-10248
                                 Conference Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 20, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSIMAR BADILLO-ORTIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-236-3


Before DENNIS, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       The attorney appointed to represent Josimar Badillo-Ortiz 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).
Badillo-Ortiz has filed a response. The record is not sufficiently developed to
allow us to make a fair evaluation of Badillo-Ortiz’s claims of ineffective
assistance of counsel; we therefore decline to consider the claims without


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10248     Document: 00513805086     Page: 2   Date Filed: 12/20/2016


                                  No. 16-10248

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 Badillo-Ortiz’s response. In his response, Badillo-
Ortiz disputes the drug quantity for which he was held accountable. Badillo-
Ortiz’s trial counsel did not object to the drug quantity at sentencing. Because
drug quantity is a factual finding, and Badillo-Ortiz failed to properly object in
the district court, Badillo-Ortiz’s drug quantity challenge cannot succeed on
plain error review. See United States v. Conn, 657 F.3d 280, 284-86 (5th Cir.
2011). We therefore agree 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.




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