United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 28, 2007
Charles R. Fulbruge III
Clerk
No. 05-11418
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
JULIO GARCIA
Defendant - Appellant
Appeal from the United States District Court
For the Northern District of Texas, Fort Worth
Before DAVIS and STEWART, Circuit Judges and GODBEY1, District
Judge.
PER CURIAM:
In this appeal, we consider the adequacy of defense counsel’s
Anders brief where the defendant has advised counsel that he does
not wish to challenge his guilty plea. We conclude that ordinarily
counsel must file a transcript and brief the issues surrounding the
plea unless the record reflects that the defendant has chosen not
to challenge the plea.
1
District Judge of the Northern District of Texas, sitting by
designation.
I.
Pursuant to a written plea agreement, Julio Garcia (Garcia)
pleaded guilty to possession with intent to distribute more than
500 grams of cocaine.2 The district court sentenced Garcia to 64
months of imprisonment and four years of supervised release.
Garcia filed a timely notice of appeal.
The Federal Public Defender (FPD), court-appointed counsel for
Garcia, has filed a motion to withdraw and a brief in accordance
with Anders v. California, 386 U.S. 738 (1967). The Clerk of Court
notified Garcia of his right to respond to counsel’s Anders brief,
but he has not done so. Counsel stated in his brief that Garcia
advised him that he did not wish to challenge his guilty plea and
for that reason counsel did not file a record of the plea colloquy
nor did he brief issues surrounding the plea. Counsel did,
however, review sentencing issues and explain why he found no
nonfrivolous issues in this respect. We consider below the
adequacy of the Anders brief under these circumstances.
II.
Anders established requirements for an appointed counsel
seeking to withdraw from representation of a defendant on his
direct criminal appeal because of the lack of nonfrivolous issues
to be raised on appeal. Anders, 386 U.S. at 744. “[I]f counsel
finds his case to be wholly frivolous, after a conscientious
2
The plea agreement did not contain an appeal waiver. See R.
1, 56-60.
2
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. “The attorney 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) (citation omitted). After the defendant has had an
opportunity to raise any additional points, the court fully
examines the record and decides whether any nonfrivolous issue is
presented for appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988); see
also Smith v. Robbins, 528 U.S. 259, 273 (2000) (the purpose of the
Anders procedure is “to vindicate the constitutional right to
appellate counsel”).
The FPD failed to furnish this court with a rearraignment
transcript, reflecting the colloquy between the court and the
defendant when the defendant entered his guilty plea - nor did he
order one. In his Anders brief, the FPD asserts that “Garcia has
informed counsel that he does not seek to vacate his guilty plea
but seeks to appeal his sentence.” Counsel has cited no authority
that permits an attorney moving to withdraw to decline to undertake
a “conscientious” examination of part of the record, based solely
on his assertion that his client wishes to appeal only part of the
judgment.
This court has not directly addressed this issue in a
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published opinion. In United States v. Prado-Prado, No. 05-50256,
188 F. App’x 329 (5th Cir. Jul. 17, 2006) (unpublished), the court
was faced with a similar factual pattern. In that case, counsel
filed an Anders brief but did not review the record relating to the
guilty plea based on her assertion that Prado-Prado instructed her
not to challenge the plea. In response to counsel’s Anders brief,
Prado-Prado filed a motion to appoint substitute counsel. The
response did not challenge counsel’s assertion that Prado-Prado did
not wish to appeal his guilty plea. Instead, the defendant
requested the appointment of substitute counsel to challenge
sentencing issues. The court construed Prado-Prado’s response as
confirmation that he did not desire to appeal his guilty plea.
Therefore, the court concluded that counsel’s Anders brief was
sufficient. The court then went on to address the sentencing
issues raised in the case.
Prado-Prado is persuasive authority, see 5TH CIR. R. 47.5, for
the proposition that it is consistent with Anders for counsel to
pretermit consideration of an appellant’s guilty plea at the
appellant’s request. However, Prado-Prado suggests that there
should be some confirmation in the record of appellant’s request.
In Jones v. Estelle, 584 F.2d 687 (5th Cir. 1978), this court
considered whether counsel must file an Anders brief following a
defendant’s withdrawal of appeal at the advice of counsel. We held
that “[c]ompliance was not required . . . because [the defendant]
voluntarily withdrew his appeal after consultation with, and advice
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from, counsel.” Id. at 691. The court emphasized that the
decision must be one “the client has ‘suggested, acquiesced in, or
concurred with.’” Id. (Citation omitted). The record in that case
confirmed that the defendant’s “decision was his own.” Id. We
stated that only where “counsel gives his client good-faith and
effective advice to withdraw an appeal he believes meritless and
the client voluntarily instructs him to do so, the Anders
requirements do not apply.”
We are persuaded that the Prado-Prado/Jones approach to this
problem is a sensible one. Read together these cases at least
implicitly require the record to reflect confirmation of the
defendant’s request that counsel forego any challenge of his guilty
plea before counsel can pretermit consideration of the plea in his
Anders brief. Requiring that the record demonstrate a defendant’s
agreement or acquiescence in foregoing an appeal on this issue,
enables us to determine from the record that the decision was the
defendant’s own - that is, “the client has ‘suggested, acquiesced
in, or concurred with’” the decision. What form must this
agreement or acquiescence take? Certainly a defendant’s response
to counsel’s Anders brief such as the one filed by Prado-Prado
raising issues unrelated to the plea without questioning any plea
related issue would qualify. Also, a written statement by the
defendant that after receiving the advice of counsel he does not
wish to challenge his guilty plea would qualify. Additionally,
counsel's recommendation in writing to the defendant that he forego
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a challenge to the guilty plea and the defendant's failure to
respond to this recommendation after a reasonable lapse of time
after defendant's receipt of the recommendation (approximately 30
days) may be sufficient.
In this case, counsel has provided this court with no
documentation confirming the defendant’s desire to forego a
challenge to his guilty plea nor has Garcia filed a response to
defense counsel’s brief. Because our case law has not been clear
on what the record must show before counsel can refrain from
providing us with a record of the plea and his analysis of any
possible appealable issues related to the plea, we believe it
appropriate to give counsel 30 days within which to provide the
court with a written confirmation from the defendant foregoing his
challenge to the plea or alternatively to show that after
reasonable notice the defendant has not responded to counsel’s
request. If counsel is unable to provide such evidence
demonstrating that the decision to forego a challenge to the plea
is one “the client has ‘suggested, acquiesced in or concurred
with,’” then counsel should proceed to obtain and file with the
court the record of the plea and proceed with the usual Anders
requirements in that respect.
Counsel’s motion to withdraw is denied subject to
reconsideration pending receipt of counsel’s supplemental filing
consistent with this opinion.
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