     Case: 12-40225     Document: 00512003119         Page: 1     Date Filed: 09/28/2012




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

                                                                            FILED
                                                                        September 28, 2012
                                     No. 12-40225
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HERSCHEL WAYNE CARUTHERS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-763-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        The Federal Public Defender appointed to represent Herschel Wayne
Caruthers 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).         Caruthers has filed a response.            The record is
insufficiently developed to allow consideration at this time of Caruthers’s claims
of ineffective assistance of counsel; such claims generally “cannot be resolved on
direct appeal when the claim has not been raised before the district court since

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40225    Document: 00512003119      Page: 2   Date Filed: 09/28/2012

                                  No. 12-40225

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). We have reviewed counsel’s brief and the
relevant portions of the record reflected therein, as well as Caruthers’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. Caruthers’s motion for the
appointment of substitute counsel is DENIED.




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