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United States Court of Appeals, Fifth CircuitFeb 15, 2011
411 Fed. Appx. 746 (5th Cir. 2011)

No. 09-20758 Conference Calendar.

February 15, 2011.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

Thomas Donald Moran, Esq., Schneider McKinney, P.C., Houston, TX, for Defendant-Appellant.

Levi Essau Cardenas-Pena, Inez, KY, pro se.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:09-CR-196-1.

Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges.

The attorney appointed to represent Levi Essau Cardenas-Pena has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cardenas-Pena has not filed a response but suggested in his notice of appeal that he wished to raise a claim of ineffective assistance of counsel. The record is insufficiently developed to allow consideration at this time of Cardenas-Pena's claim of ineffective assistance of counsel; such claims generally "cannot be resolved on direct appeal when [they have] not been raised before the district court since no opportunity existed to develop 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). Our independent review of the record and counsel's brief discloses no nonfrivolous issue for appeal. 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.