United States v. Payne , 71 F. App'x 404 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 02-50549
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THURMAN D. PAYNE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-899-3
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Court-appointed counsel for Thurman D. Payne has moved for
leave to withdraw from this appeal and has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967). Payne has filed a
response to the motion, contending that the district court’s
determination of drug quantity was arbitrary, that he should have
been granted an offense-level reduction as a minimal participant,
that he was denied the effective assistance of counsel at
sentencing, and that his counsel had a conflict of interest.
*
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that this opinion should not be published and is not precedent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. 02-50549
-2-
Payne moves for leave to file supplements to his Anders response,
in which he asserts additional sentencing and counsel-conflict
issues; those motions are GRANTED.
Our independent review of the brief, the record, and Payne’s
response discloses no nonfrivolous issue for appeal. Payne
waived the right to appeal his sentence except upon limited
grounds. The sentencing issues he asserts are waived. See
United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992).
Although Payne’s appeal waiver excepted his claims pertaining to
ineffective assistance of counsel, including his conflict-of-
interest claim, we decline to address those issues on direct
appeal, without prejudice to Payne’s right to assert such claims
in a motion pursuant to 28 U.S.C. § 2255. See Massaro v. United
States, ___ U.S. ___, 123 S. Ct. 1690, 1694 (2003); see also
United States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991).
Accordingly, counsel’s 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.