United States v. Juan Flores , 582 F. App'x 519 ( 2014 )

Case: 13-40960 Document: 00512790753 Page: 1 Date Filed: 10/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 2, 2014
No. 13-40960
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN FLORES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-168-1
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
The Federal Public Defender (FPD) appointed to represent Juan Flores
has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d
229 (5th Cir. 2011). Flores has filed a response, he has requested to substitute
retained counsel for appointed counsel, and he seeks leave to file a substitute
brief.
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: 13-40960 Document: 00512790753 Page: 2 Date Filed: 10/02/2014
No. 13-40960
Included in Flores’s response is his argument that the FPD has rendered
ineffective assistance on appeal by failing to order a rearraignment transcript
and assess whether the district court properly admonished him about certain
aspects of his plea and whether the Government complied with the plea
agreement. We generally do not review claims of ineffective assistance of
counsel on direct appeal. United States v. Isgar, 739 F.3d 829, 841 (5th Cir.
2014), petition for cert. filed (June 4, 2014) (No. 13-10484). However, this is a
rare case in which the record permits us to “fairly evaluate the merits of the
claim.” Id. In light of Flores’s declaration evincing his intent to appeal only
his sentence, the FPD’s omissions in this regard are not objectively
unreasonable. See United States v. Garcia, 483 F.3d 289, 290-91 (5th Cir.
2007). Further, assuming deficient performance, Flores cannot show prejudice
because we now have access to the rearraignment transcript and have
independently examined the record for any potentially nonfrivolous appellate
issues. Absent a showing of both deficient performance and prejudice, Flores’s
ineffective-assistance argument fails. See Strickland v. Washington, 466 U.S.
668, 687 (1984).
Our independent review of counsel’s brief, Flores’s response, and the
record, including a copy of the rearraignment transcript, leads us to 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, the motions to
substitute counsel and for leave to file a substitute brief are DENIED, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2