Case: 13-40056      Document: 00512491546         Page: 1    Date Filed: 01/07/2014




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

                                    No. 13-40056                                   FILED
                                  Summary Calendar                           January 7, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MALONE BURNS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-135-1


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       The Federal Public Defender appointed to represent Malone Burns has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 

(1967), and United States v. Flores, 

(5th
Cir. 2011). Burns has filed a response. The record is insufficiently developed
to allow consideration at this time of Burns’s claim of ineffective assistance of
counsel; such a claim generally “cannot be resolved on direct appeal when the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40056    Document: 00512491546     Page: 2   Date Filed: 01/07/2014


                                 No. 13-40056


claim has 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, 

, 1091 (5th Cir. 2006) (internal quotation marks and
citation omitted). We have reviewed counsel’s brief and the relevant portions
of the record reflected therein, as well as Burns’s response. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. 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.      Burns’s motion to file a motion for
reconsideration out of time is GRANTED but his motion for reconsideration and
motion for appointment of counsel are DENIED.




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