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

                                                                            FILED
                                                                        December 15, 2008
                                     No. 08-40255
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

DEMAS CORTEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (07-CR-731)


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
            The Federal Public Defender (FPD) appointed to represent Defendant-
     Appellant Demas Cortez has moved for leave to withdraw and has filed a brief
     in accordance with Anders v. California, 386 U.S. 738 (1967). Cortez has filed
     a response.   This court is not able to resolve on direct appeal Cortez’s
     argument, raised for the first time on appeal, that the Government breached
     the plea agreement because the record is lacking in factual predicate
     concerning the existence of any subsidiary promise. See United States v.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-40255

Corbett, 742 F.2d 173, 175-76 (5th Cir. 1984). Our independent review of the
record, counsel’s brief, and Cortez’s response 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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