     Case: 10-41282     Document: 00511573579         Page: 1     Date Filed: 08/16/2011




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

                                                                            FILED
                                                                          August 16, 2011
                                     No. 10-41282
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

J. JESUS ABOYTES-MALAGON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:10-CR-833-1


Before HIGGINBOTHAM, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        The attorney appointed to represent J. Jesus Aboytes-Malagon 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). Aboytes-Malagon has filed a response. The record is insufficiently
developed to allow consideration at this time of Aboytes-Malagon’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

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41282    Document: 00511573579    Page: 2   Date Filed: 08/16/2011

                                No. 10-41282

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) (internal
quotation marks and citation omitted). We have reviewed counsel’s brief and the
relevant portions of the record reflected therein, as well as Aboytes-Malagon’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.




                                      2
