     Case: 09-10856     Document: 00511093893          Page: 1    Date Filed: 04/28/2010




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

                                                  FILED
                                                                            April 28, 2010
                                     No. 09-10856
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HERIBERTO DUQUE, JR.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:09-CR-2-2


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        The Federal Public Defender appointed to represent Heriberto Duque, Jr.,
has moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967). Duque has filed a response. The record is
insufficiently developed to allow consideration at this time of Duque’s claims of
ineffective assistance of counsel; such claims generally “cannot be resolved on
direct appeal when [they have] not been raised before the district court since no
opportunity existed to develop the record on the merits of the allegations.”

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10856   Document: 00511093893 Page: 2       Date Filed: 04/28/2010
                                No. 09-10856

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 Duque’s response discloses no nonfrivolous issue for appeal.
Accordingly, the 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. Duque’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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