Case: 10-40572 Document: 00511404951 Page: 1 Date Filed: 03/09/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 9, 2011
                                     No. 10-40572
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAMIEN VARGAS-PENA, also known as Domingo Alvarado-Cantu, also known
as Jorge Taran-Beltran,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:10-CR-50-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       The Federal Public Defender appointed to represent Damien Vargas-Pena
has moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 

(1967). Vargas-Pena has filed a response, which
includes a claim that counsel rendered ineffective assistance. The record is
insufficiently developed to allow consideration at this time of Vargas-Pena’s
claim of ineffective assistance of counsel. Such claims generally “cannot be


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40572 Document: 00511404951 Page: 2 Date Filed: 03/09/2011

                                     No. 10-40572

resolved on direct appeal when [they have] not been raised 1 before the district
court since no opportunity existed to develop the record on the merits of the
allegations.” United States v. Cantwell, 

, 1091 (5th Cir. 2006)
(internal quotation marks and citation omitted). Our independent review of the
record, counsel’s brief, and Vargas-Pena’s response 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 5 TH C IR. R. 42.2.




      1
          At his first plea colloquy hearing, Vargas-Pena made a passing remark about his
counsel’s effectiveness, but no record was developed on this point.

                                           2