United States v. Humberto Diaz

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 28, 2018
• Docket: 17-50663
• Status: Unpublished

Opinion

Case: 17-50663 Document: 00514534073 Page: 1 Date Filed: 06/28/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-50663 FILED Summary Calendar June 28, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

v.

HUMBERTO DIAZ,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:96-CR-82-1

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. PER CURIAM: * The Federal Public Defender appointed to represent Humberto Diaz 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). Diaz has filed a response and an incorporated motion for leave to proceed pro se on appeal.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-50663 Document: 00514534073 Page: 2 Date Filed: 06/28/2018

No. 17-50663

We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Diaz’s response and incorporated motion. Diaz’s motion to proceed pro se is untimely. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. In particular, there is no nonfrivolous issue for appeal regarding Diaz’s complaints of ineffective assistance of counsel; any complaints about sentencing and direct appeal counsel are not cognizable under 18 U.S.C. § 3582(c)(2), see Dillon v. United States, 560 U.S. 817, 831 (2010), and Diaz has no constitutional right to appointed counsel in a § 3582(c)(2) proceeding, see Coleman v. Thompson, 501 U.S. 722, 752 (1991); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). Accordingly, the motion for leave to proceed pro se is DENIED, 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.