     Case: 10-10495     Document: 00511640054         Page: 1     Date Filed: 10/21/2011




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

                                                                            FILED
                                                                         October 21, 2011
                                     No. 10-10495
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WADE PHILLIP SMITH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-115-4


Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        The attorney appointed to represent Wade Phillip Smith 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).
Smith has filed a response. The record is insufficiently developed to allow
consideration at this time of Smith’s claim of ineffective assistance of counsel;
such a claim generally “cannot be resolved on direct appeal when the claim has
not been raised before the district court since no opportunity existed to develop

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10495   Document: 00511640054     Page: 2   Date Filed: 10/21/2011

                                 No. 10-10495

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 Smith’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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