United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-50256
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE PRADO-PRADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-983-ALL-FM)
Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.
PER CURIAM:*
Concerning appointed counsel’s motion and brief for withdrawal
of counsel and dismissal of this appeal, in accordance with the
procedure mandated by Anders v. California, 386 U.S. 738 (1967),
primarily at issue is the sufficiency of the brief. For reasons
stated in the brief, it addresses issues related to Jose Prado-
Prado’s sentencing, but not to his guilty plea. MOTION TO WITHDRAW
GRANTED; APPEAL DISMISSED.
*
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this opinion should not be published and is not precedent except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.
I.
In October 2004, Prado-Prado pleaded guilty to illegally
reentering the United States, in violation of 8 U.S.C. § 1326(a).
After being sentenced, inter alia, to 77 months in prison, he
timely appealed.
Prado-Prado’s appointed counsel filed an Anders motion to
withdraw and an accompanying brief. Notified of his right to
respond, Prado-Prado filed a motion to substitute appointed
counsel.
II.
Anders, 386 U.S. at 744, established requirements for an
appointed counsel’s seeking to withdraw, because of a lack of
nonfrivolous issues, from representation of a defendant on his
direct criminal appeal. “[I]f 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”. Id. Appointed
counsel “must isolate possibly important issues and must furnish
the court with references to the record and legal authorities to
aid it in its appellate function”. United States v. Cordero, 18
F.3d 1248, 1253 (5th Cir. 1994) (internal citation and quotation
marks omitted).
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A.
As discussed below, appointed counsel’s brief intentionally
does not address whether there are any nonfrivolous issues related
to Prado-Prado’s guilty plea. Such an omission is usually
understandable because guilty-plea defendants/appellants often do
“not benefit from invalidating a plea and going to trial”. United
States v. Ibrahim, 62 F.3d 72, 73-74 (2d Cir. 1995) (holding that,
when an appellant has not requested the validity of his plea to be
challenged on appeal, the Anders brief should either: (1) state
that counsel has determined “appellant would run an unacceptable
risk of adverse consequences in challenging the validity of a
plea”; or (2) discuss the plea’s validity and the presence of no
nonfrivolous issues regarding it).
Here, the brief explained appointed counsel did “not review[]
the validity of Prado-Prado’s guilty plea, because [he] directed
counsel to appeal only the sentence imposed, and not to challenge
his guilty plea entered in this case”. (Emphasis added.) As
noted, Prado-Prado’s response did not challenge this statement;
instead, he moved for substitute appointed counsel to assist in
seeking redress for potential sentencing issues on the basis that
appointed counsel failed to inform the district court that, shortly
before Prado-Prado’s late-January 2005 sentencing, the Supreme
Court decided United States v. Booker, 543 U.S. 220 (2005) (holding
sentencing guidelines are no longer mandatory, but advisory).
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In Jones v. Estelle, 584 F.2d 687, 691 (5th Cir. 1978),
appointed counsel advised defendant to withdraw his appeal because
it was meritless. Our court held Anders compliance was not
required because “Anders does not apply to an attorney whose client
instructs him ... to withdraw his appeal after being advised that
an appeal would be meritless and against his best interests”. Id.
Nevertheless, we noted the client must “suggest[], acquiesce[] in,
or concur[] with” the decision to withdraw. Id. (internal citation
and quotation marks omitted).
Here, appointed counsel is similarly not required to address
Prado-Prado’s guilty plea in his Anders brief because Prado-Prado
has instructed counsel not to do so. Along this line, we construe
Prado-Prado’s above-described motion-to-substitute-appointed-
counsel response as confirming he does not desire on appeal to
challenge his guilty plea. Accordingly, the brief’s not addressing
that plea does not render it insufficient under Anders.
B.
As noted, Prado-Prado’s motion claims appointed counsel erred
by failing to inform the district court the sentencing guidelines
are advisory, not mandatory, pursuant to Booker. Concerning this
challenge to his sentence, as well as the other aspects of the
sentence, our review of counsel’s Anders brief, the sentencing
transcript, and the record has revealed no nonfrivolous issues.
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Concerning Booker, neither it, nor the guidelines’ now being
only advisory, were mentioned at sentencing by appointed counsel
(or the court). Accordingly, for a claim that the sentence would
have been different, had the court been so informed, review would
be only for plain error. At sentencing, the court’s statement of
reasons provided: “The sentence is within the recommended
guideline range ... and the Court finds no reason to depart from
the sentence called for by application of the guidelines”.
Under our post-Booker precedent, the guidelines were not
applied erroneously. Accordingly, there would be no Booker error
other than to claim error simply because of the alleged application
of mandatory, rather than advisory, guidelines. See United States
v. Villegas, 404 F.3d 355 (5th Cir. 2005); United States v. Mares,
402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). For
such error, the burden is on Prado-Prado to show this affected his
substantial rights — his sentence would have been different. Based
on the above statement of reasons, he cannot do so. Therefore,
Prado-Prado would be unable to demonstrate, inter alia, the
requisite reversible plain error under the applicable standard.
Nor, as stated, for other aspects of the sentence are there
any nonfrivolous issues. In sum, the Anders standard is satisfied.
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III.
For the foregoing reasons, the Anders motion for leave to
withdraw is GRANTED; Prado-Prado’s motion for appointment of
substitute counsel is DENIED; and his appeal is DISMISSED.
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