Case: 09-41281 Document: 00511367080 Page: 1 Date Filed: 01/31/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 31, 2011
No. 09-41281 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAMONA FLORES
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant Ramona Flores appeals after her guilty plea conviction for
being found illegally in the United States after having been previously deported,
in violation of 8 U.S.C. § 1326. Flores’ counsel has filed a motion to withdraw
and a brief that relies on Anders v. California, 386 U.S. 738 (1967), stating that
the appeal is without merit. We grant the motion and take this opportunity to
explain what we expect in an Anders brief and why the brief in this case is
sufficient.
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No. 09-41281
I.
Nicaraguan national Ramona Flores pleaded guilty, pursuant to a written
plea agreement, to being found illegally in the U.S. after having been previously
deported, in violation of 8 U.S.C. § 1326. The plea agreement did not contain an
appeal waiver. The factual basis that Flores admitted to be true at
rearraignment stated that she previously was deported from the U.S. on May 10,
2006, and that she was again found inside the U.S. on July 8, 2009. See United
States v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir. 2008) (holding that the fact
of removal must be admitted or proven beyond a reasonable doubt).
The PSR calculated Flores’ total offense level at 21. This included a 16-
level increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because she had
previously been deported following a felony conviction for a crime of violence,
specifically, a December 2000 Florida conviction for aggravated assault with a
deadly weapon. It determined Flores’ criminal history score to be III, subjecting
her to a guidelines range of 46 to 57 months of imprisonment. Flores did not
object to the PSR’s calculations. The district court sentenced her at the low end
of the guidelines range, 46 months, followed by a three-year period of supervised
release. Flores timely appealed.
II.
The Federal Public Defender appointed to represent Flores has filed a
motion for leave to withdraw and an Anders brief. Anders established standards
for a court-appointed attorney who seeks to withdraw from a direct criminal
appeal on the ground that the appeal lacks an issue of arguable merit. After a
“conscientious examination” of the case, the attorney must “request permission
to withdraw” and submit a “brief referring to anything in the record that might
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arguably support the appeal.” Anders, 386 U.S. at 744. Flores was informed of
counsel’s motion to withdraw but has not filed a response.
At this point our current practice is to examine the brief submitted by
counsel raising anything in the record that might arguably support an appeal,
examine any points raised by the appellant himself, and independently examine
the record, to determine whether counsel has adequately identified all
nonfrivolous issues. We write in this case to signal a change in this court’s
approach to Anders cases.
Our analysis must start with the Supreme Court’s seminal decision in
Anders v. California. In Anders, after the California District Court of Appeal
had appointed counsel to conduct a first appeal to that court from an indigent's
conviction, counsel informed the court by letter that after a study of the record
and consultation with the accused, he had concluded that there was no merit to
the appeal. The court denied the indigent's request for appointment of another
attorney, after which the indigent filed his own brief pro se. The state responded
and the indigent filed a reply brief. The conviction was affirmed. About 6 years
later, the court denied the indigent's application for writ of habeas corpus,
stating that the earlier appeal had been without merit. The Supreme Court of
California later denied without opinion the indigent's petition for habeas corpus.
On certiorari, the Supreme Court of the United States reversed and held
that the constitutional right to counsel requires that on an indigent's first appeal
from his conviction, court-appointed counsel support the appeal to the best of his
ability, requesting permission to withdraw only if he finds the case to be wholly
frivolous, in which event he must file a brief referring to anything in the record
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that might arguably support the appeal. A “no merit” letter does not satisfy this
requirement. Rather the court stated that
Counsel[’s] . . . role as advocate requires that he support his client's
appeal to the best of his ability. Of course, if counsel finds his case
to be wholly frivolous, after a conscientious examination of it, he
should so advise the court and request permission to withdraw.
That request must, however, be accompanied by a brief referring to
anything in the record that might arguably support the appeal.
Anders, 386 U.S. at 744. Anders’s focus therefore is on defense counsel’s duty
when he finds no arguable issue to present on appeal. More than thirty years
ago, we directed counsel filing Anders briefs that “Anders requires counsel to
isolate possibly important issues and to furnish the court with references to the
record and legal authorities to aid it in its appellate function.” United States v.
Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976).
As we recognized in another Anders case issued this same day, United
States v. Garland, No. 09-50317,
The Fifth Circuit’s website provides a detailed checklist and
outline for Anders briefs for guilty pleas and for bench or jury trials.
See http://www.ca5.uscourts.gov. The guidelines and checklist are
under the “Attorney Information Section.” This checklist is
designed to assist counsel in preparing a brief that will satisfy the
standards of Anders in this circuit.
Counsel obviously has broad discretion in the preparation of
his brief. For example, he can cover the material set forth in the
checklist in narrative form, or cut and paste the outline from the
checklist and answer the questions called for in it. No particular
form of brief is required. The point is that counsel should
demonstrate that he has considered the issues set forth in the
checklist to the extent they apply to her case. This will assist our
review of the brief to determine whether it is adequate.
Barring unusual circumstances in the proceedings, a brief
submitted by an attorney considering the issues set forth in the
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checklist and addressing the areas of inquiry appropriate to his case
will be facially adequate, meaning that it meets both the
requirement placed on counsel to “support his client’s appeal to the
best of his ability”, Anders, 386 U.S. at 744, and “to act with candor
[to the court] in presenting claims for judicial resolution,” McCoy v.
Court of Appeals, Dist. 1, 486 U.S. 429, 440 (1988).
Id. In addition to fully complying with Anders, counsel must provide a copy of
his brief to the defendant and the brief should include in the Certificate of
Service a statement that this requirement has been complied with. Anders, 386
U.S. at 744.
The brief in this case satisfies these standards. Flores’ brief covers every
applicable item on the Checklist and Outline for Anders briefs for guilty pleas,
applying each item to the facts of Flores’ proceedings and providing references
to the record and citations to appropriate legal authority. The brief also
addresses the propriety of a 16 level enhancement applied to Flores’ sentence
for a prior crime of violence and whether the sentence was reasonable. Flores
did not submit a brief after being informed of her counsel’s motion to withdraw.
The Seventh Circuit has concluded that the appellate court reviewing a
brief filed under Anders need not have its “law clerk or staff attorney . . . scour
the record for issues that the lawyer may have overlooked.” United States v.
Wagner, 103 F.3d 551, 552 (7th Cir. 1996). That practice “gives the indigent
defendant more than he could expect had counsel (whether retained or
appointed) decided to press the appeal, since counsel’s decision on which issues
to raise on appeal would normally be conclusive.” Id. (citing Jones v. Barnes, 463
U.S. 745 (1983); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996); and Sharp v.
Puckett, 930 F.2d 450 (5th Cir. 1991)).
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The Seventh Circuit first rejected an approach that attaches conclusive
weight to the defendant’s failure to respond to an Anders motion, because “the
defendant will ordinarily not be learned in the law” and “his failure to respond
may reflect an inability to spot possible flaws in his lawyer’s legal arguments.”
Wagner, 103 F.3d at 552. The court also rejected the “opposite extreme”
requiring the court to comb the record even where the Anders brief appears to
be perfectly adequate, searching for possible nonfrivolous issues that both the
lawyer and the client may have overlooked and, if one is found, appointing a new
lawyer and directing him to the issues identified. The court concluded that the
“Anders procedure implements the Sixth Amendment right of counsel, 386 U.S.
at 742, a right to have counsel of minimum professional competence - not to have
a committee of counsel including judges of the court of appeals.” Id. Instead it
adopted an intermediate position -
The intermediate position, which we now adopt, is for the appellate
court to be guided in reviewing the record by the Anders brief itself,
provided that the brief is adequate on its face. (If it is not, we shall
deny the Anders motion and either direct counsel to file a new brief
or discharge counsel and appoint a new lawyer for the defendant.)
If the brief explains the nature of the case and fully and intelligently
discusses the issues that the type of case might be expected to
involve, we shall not conduct an independent top-to-bottom review
of the record in the district court to determine whether a more
resourceful or ingenious lawyer might have found additional issues
that may not be frivolous. We shall confine our scrutiny of the
record to the portions of it that relate to the issues discussed in the
brief. If in light of this scrutiny it is apparent that the lawyer's
discussion of the issues that he chose to discuss is responsible and
if there is nothing in the district court's decision to suggest that
there are other issues the brief should have discussed, we shall have
enough basis for confidence in the lawyer's competence to forgo
scrutiny of the rest of the record. The resources of the courts of
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appeals are limited and the time of staff attorneys and law clerks
that is devoted to searching haystacks for needles is unavailable for
more promising research.
Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United
States v. Youla, 241 F.3d 296 (3d Cir. 2000) and United States v. Ripoll, 123 Fed.
Appx. 479 (3d Cir. 2004)(unpublished).
We agree with the Seventh Circuit’s analysis and adopt its approach to
Anders cases. The holding in this case, along with the holding in our companion
case, United States v. Garland, No. 09-50317, setting forth the minimum
standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment
right of counsel on direct appeal.
Applying this process to the facts of Flores’ guilty plea and sentence, and
based on our review of counsel’s brief and the relevant portions of the record
referenced therein, we accept counsel’s assessment that Flores has no
nonfrivolous issues to raise on appeal.
III.
Accordingly, counsel’s motion to withdraw is granted and the appeal is
dismissed as frivolous. See 5th Cir. R. 42.2.1
1
We have incorporated a number of changes in the opinion suggested by other judges
on the court and, with those changes, all active judges have assented.
7