United States v. Pena

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10925 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANSICO PENA, also known as Paco,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-266-13-X -------------------- June 18, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Appointed counsel for Pena has moved to supplement the

record with the transcript of rearraignment. The motion to

supplement is GRANTED.

Appointed counsel for Fransico Pena has also moved for leave

to withdraw and has filed a brief as required by Anders v.

California, 386 U.S. 738 (1967). Pena received a copy of

counsel’s motion and brief and has filed a response. Among other

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-10925 -2-

things, Pena alleges ineffective assistance of counsel at the

plea and at sentencing. Pena did not waive appeal of ineffective

assistance of counsel claims either on direct appeal or in a

proceeding under 28 U.S.C § 2255. This issue cannot be decided

on direct appeal because the record is inadequate for this court

to evaluate the claims. United States v. Fry, 51 F.3d 543, 545

(5th Cir. 1995); United States v. Higdon, 832 F.2d 312, 314 (5th

Cir. 1987).

Our independent review of the brief, the remaining issues

raised in Pena’s response, and the record discloses no

nonfrivolous issue. Accordingly, counsel’s motion for leave to

withdraw is GRANTED, counsel is excused from further

responsibilities herein. Pena’s motion to dismiss counsel and

for an extension of time are DENIED. See United States v.

Wagner, 158 F.3d 901, 902 (5th Cir. 1998). The APPEAL IS

DISMISSED. See 5TH CIR. R. 42.2.