     Case: 17-50903      Document: 00514538952         Page: 1    Date Filed: 07/03/2018




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

                                                                                 FILED
                                    No. 17-50903                              July 3, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE CANDELARIO OLIVARES-BENAVIDES,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:17-CR-390-1


Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       The Federal Public Defender appointed to represent Jose Candelario
Olivares-Benavides 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).             Olivares-Benavides has filed a
response. Olivares-Benavides argues that the district court erred in failing to
give him a third point for acceptance of responsibility; that the district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50903     Document: 00514538952    Page: 2   Date Filed: 07/03/2018


                                 No. 17-50903

erred in finding that he had 12 prior misdemeanor convictions versus 11 prior
misdemeanor convictions; that the district court effectively ignored the 2016
amendment to U.S.S.G. § 2L1.2 by sentencing him to an above-guidelines
sentence; and that counsel was ineffective for failing to challenge the district
court’s sentencing determination on the aforementioned grounds and based
upon the ground that counsel failed to challenge the district court’s alleged
inadequate explanation for the upward variance. The record is sufficiently
developed to allow us to make a fair evaluation of Olivares-Benavides’s claims
of ineffective assistance of counsel. See United States v. Isgar, 739 F.3d 829,
841 (5th Cir. 2014).
      We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Olivares-Benavides’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.




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