     Case: 10-40572 Document: 00511404951 Page: 1 Date Filed: 03/09/2011




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

                                                 FILED
                                                                            March 9, 2011
                                     No. 10-40572
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAMIEN VARGAS-PENA, also known as Domingo Alvarado-Cantu, also known
as Jorge Taran-Beltran,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:10-CR-50-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       The Federal Public Defender appointed to represent Damien Vargas-Pena
has moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967). Vargas-Pena has filed a response, which
includes a claim that counsel rendered ineffective assistance. The record is
insufficiently developed to allow consideration at this time of Vargas-Pena’s
claim of ineffective assistance of counsel. Such claims generally “cannot 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40572 Document: 00511404951 Page: 2 Date Filed: 03/09/2011

                                     No. 10-40572

resolved on direct appeal when [they have] not been raised 1 before the district
court since 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). Our independent review of the
record, counsel’s brief, and Vargas-Pena’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.




      1
          At his first plea colloquy hearing, Vargas-Pena made a passing remark about his
counsel’s effectiveness, but no record was developed on this point.

                                           2
