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

                                                                            FILED
                                                                           June 24, 2008
                                     No. 07-40785
                                  Conference Calendar                 Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

BENEDICTO TORIBIO

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:07-CR-148-1


                         ON PETITION FOR REHEARING


Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Benedicto Toribio is GRANTED leave to file an out-of-time petition for
panel rehearing, his petition for panel rehearing is GRANTED, our prior panel
opinion is WITHDRAWN, and this opinion is SUBSTITUTED therefor.
       The Federal Public Defender appointed to represent Benedicto Toribio has
moved for leave to withdraw and has filed a brief in accordance with Anders 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40785

California, 386 U.S. 738 (1967). Toribio has filed a response. The record is
insufficiently developed to allow consideration at this time of Toribio’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.”
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 Toribio’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
5TH CIR. R. 42.2.




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