                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 4, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 03-50617
                          Summary Calendar



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

MONCLAVIO BORJORQUE MARTINEZ-MONTOYA,

                                                   Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                           (7:02-CR-101-1)
                        --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges

PER CURIAM:*

     The   attorney   appointed   to   represent   Defendant-Appellant

Monclavio Borjorque Martinez-Montoya has filed a motion for leave

to withdraw as counsel for appellant in this appeal and has filed

a brief as required by Anders v. California, 386 U.S. 738 (1967).

Martinez-Montoya has filed a pro se response and argues, inter

alia, that counsel rendered ineffective assistance by failing to

object on the basis of the Sixth Amendment and Apprendi v. New

Jersey, 530 U.S. 466 (2000).       We decline to address Martinez-


     *
       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this opinion should not be published and is not precedent except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.
Montoya’s claim of ineffective assistance of counsel on direct

appeal, without prejudice, however, to his raising those claims in

a 28 U.S.C. § 2255 motion.   See Massaro v. United States, 538 U.S.

500, 508 (2003).

     Our   independent   review   of    the   briefs,   the   record,   and

Martinez-Montoya’s responses 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.      See 5TH CIR. R. 42.2.




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