Case: 13-50230 Document: 00512637964 Page: 1 Date Filed: 05/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50230 FILED
Summary Calendar May 21, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEROME MAURICE COLE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:12-CR-208-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Jerome Maurice Cole has moved for
leave to withdraw and has filed briefs in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Cole has filed a response, a supplemental response, a motion for extension of
time to file a response, and a motion for leave to file a supplemental response.
The record is not sufficiently developed to allow us to make a fair evaluation of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50230
Cole’s claims of ineffective assistance of counsel; we therefore decline to
consider the claims without prejudice to collateral review. See United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
Cole’s motions for an extension of time to file a response and for leave to
file a supplemental response are GRANTED. We have reviewed counsel’s
briefs and the relevant portions of the record reflected therein, as well as all of
Cole’s responses. In a prior order, we directed counsel to the issue of whether
the conflict between the written judgment and oral pronouncement of special
conditions of supervised release was barred by Cole’s appeal waiver. In a
supplemental brief, Cole’s attorney notes our recent decision in United States
v. Higgins, 739 F.3d 733 (5th Cir. 2014), petition for cert. filed (Apr. 9, 2014)
(No. 13-9678) which resolves this issue adversely to Cole. Cole’s attorney and
Cole in his response to the Anders brief note their disagreement with Higgins
and suggest it should be overruled en banc. We construe these statements as
efforts to preserve this issue for further review. In light of Higgins, however,
we enforce the appellate waiver. Accordingly, the motion for leave to withdraw
is GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED pursuant to the appeal waiver. See 5TH CIR. R. 42.2.
Cole’s motion for the appointment of alternate counsel is DENIED. Cf. United
States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
The record, however, reflects clerical errors in the written statement of
reasons. In one instance, the written statement of reasons incorrectly states
that Cole’s criminal history category was II, although it correctly states in a
different instance that Cole’s criminal history category was III. The written
statement of reasons also states that the guidelines sentence range was life
imprisonment and that Cole was sentenced within the guidelines range despite
the fact that Cole was sentenced to 480 months of imprisonment. It further
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Case: 13-50230 Document: 00512637964 Page: 3 Date Filed: 05/21/2014
No. 13-50230
omits that the district court applied a three-level downward departure for the
assistance Cole gave with a military court martial. Accordingly, we REMAND
for correction of the clerical errors in the written statement of reasons in
accordance with Federal Rule of Criminal Procedure 36. See Higgins, 739 F.3d
at 739 n.16; United States v. Rosales, 448 F. App’x 466, 466-67 (5th Cir. 2011).
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