     Case: 09-41195 Document: 00511284776 Page: 1 Date Filed: 11/04/2010




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

                                                 FILED
                                                                          November 4, 2010
                                     No. 09-41195
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KEVIN MORAN SMITH,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:08-CR-107-7


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       The attorney appointed to represent Kevin Moran Smith has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967). Smith has filed a response. The record is insufficiently
developed to allow consideration at this time of Smith’s claim 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



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41195 Document: 00511284776 Page: 2 Date Filed: 11/04/2010

                                 No. 09-41195

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
Smith’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.




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