United States v. Gutierrez

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 3, 2021
• Docket: 19-11283
• Status: Unpublished

Opinion

Case: 19-11283 Document: 00515845925 Page: 1 Date Filed: 05/03/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED May 3, 2021 No. 19-11283 Lyle W. Cayce Conference Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Jose Gutierrez,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18-CR-519-4

Before Davis, Elrod, and Oldham, Circuit Judges. Per Curiam:* The attorney appointed to represent Jose Gutierrez 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). Gutierrez has filed a response. The record is not sufficiently developed to

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-11283 Document: 00515845925 Page: 2 Date Filed: 05/03/2021

No. 19-11283

allow us to make a fair evaluation of Gutierrez’s claim of ineffective assistance of counsel; we therefore decline to consider the claim without prejudice to collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Gutierrez’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. Gutierrez’s request for the appointment of new appellate counsel is DENIED as untimely. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).