United States v. Juan Lara , 583 F. App'x 395 ( 2014 )

Case: 12-41235 Document: 00512820448 Page: 1 Date Filed: 10/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 12-41235 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
October 30, 2014
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JUAN LARA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-247-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Juan Lara has moved for leave to
withdraw and has filed a brief and supplemental brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Lara has filed responses and moves for the appointment of new
counsel or, alternatively, resentencing or a sentence reduction. Although
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 12-41235
Lara’s responses also raise claims of ineffective assistance of counsel, those
claims were not presented before the district court. We therefore decline to
consider the claims without prejudice to Lara’s raising these claims on
collateral review. See United States v. Foy, 28 F.3d 464, 476 (5th Cir. 1994)
(“[T]he general rule in this circuit is that a claim for ineffective assistance of
counsel cannot be resolved on direct appeal when the claim has not been raised
before the district court since no opportunity existed to develop the record on
the merits of the allegations.” (quoting United States v. Pierce, 959 F.2d 1297,
1301 (5th Cir.), cert. denied, 506 U.S. 1007 (1992))).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein. We concur with counsel’s assessment that the record
presents no nonfrivolous issue for appellate review. We have also reviewed
Lara’s responses, which also do not raise a nonfrivolous issue for appeal.
Specifically, Lara contends that the district court erred in applying the drug
trafficking enhancement because his 2010 Texas conviction was for possession,
rather than delivery, of a controlled substance. Lara relies on a state court
order, which seems to strike the words “with intent to deliver” from his
indictment. That order is dated March 8, 2008. Inconsistent with that order,
Lara’s plea agreement and final judgment, which are both dated January 25,
2010, reflect that Lara was convicted of “unlawful delivery of a controlled
substance.” Accepting Lara’s argument would require us to invalidate the
state court judgment. Accordingly, Lara’s challenge is properly characterized
as a collateral attack on the prior judgment, which should be brought through
a postconviction proceeding in Texas or federal habeas review. See United
States v. Longstreet, 603 F.3d 273, 276-77 (5th Cir. 2010) (“[A]bsent an
allegation that the defendant was denied counsel in the prior proceeding, a
district court sentencing a defendant may not entertain a collateral attack on
a prior conviction used to enhance the sentence unless such an attack is
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No. 12-41235
otherwise recognized by law.”); see also Custis v. United States, 511 U.S. 485,
497 (1994). Because we find no nonfrivolous issue for appeal, 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.
Lara’s motions for the appointment of new counsel or, alternatively,
resentencing or a sentence reduction are DENIED.
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