IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10288

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JONATHAN LOVATO,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:16-CR-41-3

Before KING, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

The attorney appointed to represent Jonathan Lovato 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). 

The brief indicates that the only potential nonfrivolous issues for appeal are 

barred by the appeal waiver contained within the plea agreement to which 

Lovato voluntarily agreed. The brief does raise one potentially nonfrivolous 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2017

Lyle W. Cayce

Clerk

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No. 17-10288

2

claim for ineffective assistance of counsel related to the failure to object to a 

possible error in the Guidelines calculation, but notes that claims for 

ineffective assistance should generally be raised on collateral review rather 

than direct appeal. 

Lovato has filed a response to the brief and requests the opportunity to 

file a brief on the merits pro se. He contends that his plea agreement was not 

voluntary in light of alleged ineffective assistance of counsel at the plea stage; 

that the district court made several errors in calculating his Guidelines 

sentence; that his trial counsel rendered ineffective assistance in failing to 

object to errors in the Guidelines calculation; and that his sentence is 

substantively unreasonable. 

We have reviewed counsel’s brief, the relevant portions of the record, and

Lovato’s response, and we concur with counsel’s assessment. The record is not 

sufficiently developed to allow us to make a fair evaluation of Lovato’s claims

of ineffective assistance of counsel. Accordingly, we decline to consider his 

ineffective-assistance claims without prejudice to his right to pursue relief on 

collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014)

(noting that the record is rarely sufficient to permit review of ineffectiveassistance claims on direct appeal and declining to consider claims without 

prejudice to collateral review). Furthermore, any other potentially

nonfrivolous challenges are barred by the plea agreement.1 

Finally, Lovato’s request to proceed pro se is untimely because it was 

filed after counsel filed the Anders brief. See United States v. Wagner, 158 F.3d 

 

1 As explained in counsel’s Anders brief and evidenced by the record, Lovato’s guilty 

plea appears to have satisfied the requirements of Fed. R. Crim. P. 11. While Lovato now 

challenges the voluntariness of his plea on the ground that it was the result of ineffective 

assistance of counsel, the record is insufficient to permit us to evaluate that claim. As stated 

above, any such challenge should be brought on collateral review. 

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No. 17-10288

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901, 902-03 (5th Cir. 1998) (holding that a request to proceed pro se is not 

timely when made after appointed counsel has filed an Anders brief).

Accordingly, the motion for leave to withdraw is GRANTED, counsel is 

excused from further responsibilities herein, Lovato’s motion to proceed pro se 

is DENIED, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

 Case: 17-10288 Document: 00514196537 Page: 3 Date Filed: 10/16/2017