     Case: 10-40496 Document: 00511369090 Page: 1 Date Filed: 02/02/2011




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

                                                 FILED
                                                                          February 2, 2011
                                     No. 10-40496
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE DANILO BRIZUELA-RAMOS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 2:09-CR-1041-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       The Federal Public Defender appointed to represent Jose Danilo Brizuela-
Ramos has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Brizuela-Ramos has filed a response.
He contends that the Government breached its plea agreement with him.
Specifically, Brizuela-Ramos contends that the Government failed to argue for
the maximum acceptance of responsibility points. However, the plea agreement
provided that the Government was not bound to that promise “should it be

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40496 Document: 00511369090 Page: 2 Date Filed: 02/02/2011

                                 No. 10-40496

judged by the Government [that] the Defendant has committed . . . any
additional crime.”   The Government presented unrebutted evidence that
Brizuela-Ramos participated in an assault on a fellow inmate while in prison
awaiting sentencing. This evidence was sufficient to support the district court’s
conclusion that the Government was released from its promise.          The plea
agreement did not require a conviction, as Brizuela-Ramos appears to argue.
      Our independent review of the record, counsel’s brief, and Brizuela-
Ramos’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 5 TH C IR.
R. 42.2.




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