     Case: 12-40897       Document: 00512271710         Page: 1     Date Filed: 06/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 12, 2013
                                     No. 12-40897
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DERRICK JOHN SUTTON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CR-123-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The Federal Public Defender appointed to represent Derrick John Sutton
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). Sutton has filed a response. He has also filed an untimely motion for
leave to file a pro se brief, which we construe as a motion for leave to file an out-
of-time supplemental response to counsel’s motion to withdraw and GRANT.
The record is insufficiently developed to allow consideration at this time of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40897     Document: 00512271710      Page: 2   Date Filed: 06/12/2013

                                  No. 12-40897

Sutton’s claim 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
the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Sutton’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. Sutton’s motion for the appointment of substitute counsel is
DENIED. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).




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