     Case: 16-40474      Document: 00513774892         Page: 1    Date Filed: 11/28/2016




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

                                    No. 16-40474
                                                                                    Fifth Circuit

                                                                                  FILED
                                Cons. w/ No. 15-41076                     November 28, 2016
                                 Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS ALVAREZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-96-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       The attorney appointed to represent Jesus Alvarez has moved in these
consolidated appeals 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). Alvarez has filed a response.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40474     Document: 00513774892      Page: 2   Date Filed: 11/28/2016


                                 No. 16-40474
                            Cons. w/ No. 15-41076
      Included in Alvarez’s response is a claim that trial counsel and appellate
counsel were ineffective for failing to argue that the district court did not have
jurisdiction over his criminal proceedings because Congress does not have the
power under the Constitution to create federal crimes. We generally do not
review claims of ineffective assistance of counsel on direct appeal. United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). However, this is one of those
“rare cases in which the record” permits us to “fairly evaluate the merits of the
claim.”   Id. (internal quotation marks and citations omitted). Alvarez was
convicted pursuant to the Controlled Substances Act (CSA), 21 U.S.C. §§ 846
and 841. The CSA was enacted pursuant to Congress’s authority under the
Commerce Clause.        See Gonzales v. Raich, 545 U.S. 1, 12-22 (2005).
Accordingly, Alvarez has not shown a nonfrivolous issue regarding whether his
trial counsel or his appellate counsel was ineffective for failing to challenge the
district court’s jurisdiction over his criminal proceedings. See Strickland v.
Washington, 466 U.S. 668, 694 (1984).
      We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Alvarez’s response. We concur with counsel’s
assessment that the appeals present no nonfrivolous issue for appellate review.
Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused
from further responsibilities herein, and the APPEALS ARE DISMISSED. See
5TH CIR. R. 42.2. Alvarez’s motion for transcripts and the appointment of new
counsel is DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th
Cir. 1998); see also United States v. Ramos, 390 F. App’x 425, 426 (5th Cir.
2010).




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