United States v. Sandoval

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50853 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO TORRES SANDOVAL, also known as Richard LNU,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. P-97-CR-157-1 - - - - - - - - - -

August 25, 1999

Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

Court-appointed counsel for Ricardo Torres Sandoval has

moved for leave to withdraw and has filed a brief as required by

Anders v. California, 386 U.S. 738 (1967). Sandoval has received

a copy of counsel’s motion and brief, but has not filed a

response.

As part of the plea agreement, Sandoval waived the right to

appeal any aspect of his conviction and sentence. The waiver did

not apply to ineffective assistance of counsel or prosecutorial

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-50853 -2-

misconduct of constitutional dimension of which Sandoval did not

have knowledge at the time of sentencing.

We have reviewed the record and find that Sandoval’s waiver

of his right to appeal was informed and voluntary. United States

v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Thus, unless

circumstances exist which implicate the two exceptions of the

waiver-of-appeal provision, the waiver precludes any direct

appeal. See id.

Court-appointed counsel suggests that this court may want to

appoint substitute counsel for the purpose of reviewing the

sentencing proceedings, in light of Sandoval’s assertion at

sentencing that counsel was ineffective. To the extent that

counsel suggests that there may exist a nonfrivolous

ineffectiveness claim, the record has not been adequately

developed for us to consider such a claim on direct appeal. See

United States v. Scott, 159 F.3d 916, 924 (5th Cir. 1998). Thus,

counsel’s request that substitute counsel be appointed is DENIED.

Our independent review of the brief and the record discloses

no nonfrivolous appellate issues. Accordingly, the motion for

leave to withdraw is GRANTED, counsel is excused from further

responsibilities herein, and the APPEAL IS DISMISSED.