UNITED STATES v. OLIVARES BENAVIDES (2018)

The Federal Public Defender appointed to represent Jose Candelario Olivares-Benavides has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Olivares-Benavides has filed a response. Olivares-Benavides argues that the district court erred in failing to give him a third point for acceptance of responsibility; that the district court erred in finding that he had 12 prior misdemeanor convictions versus 11 prior misdemeanor convictions; that the district court effectively ignored the 2016 amendment to U.S.S.G. § 2L1.2 by sentencing him to an above-guidelines sentence; and that counsel was ineffective for failing to challenge the district court’s sentencing determination on the aforementioned grounds and based upon the ground that counsel failed to challenge the district court’s alleged inadequate explanation for the upward variance. The record is sufficiently developed to allow us to make a fair evaluation of Olivares-Benavides’s claims of ineffective assistance of counsel. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).

We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Olivares-Benavides’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.

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FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.