IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 3, 2008
No. 07-10177
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES M. DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before DAVIS, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
James Davis pleaded guilty of being a felon in possession of a firearm. The
written plea agreement expressly limits his right to appeal,1 but he nonetheless
appeals. His federal public defender, Jason Hawkins, claims that the appeal is
1
The agreement permits Davis to appeal his sentence only if it exceeds the statutory
maximum, if there is a calculation error at sentencing, if there is a question as to the voluntari-
ness of the plea agreement, or for a claim of ineffective assistance of counsel. None of these ex-
ceptions applies here.
No. 07-10177
frivolous and, pursuant to Anders v. California, 386 U.S. 738 (1967), and United
States v. Acquaye, 452 F.3d 380 (5th Cir. 2006), moves to withdraw as counsel.2
Anders established standards for a court-appointed attorney seeking to
withdraw from a criminal appeal on the ground that the appeal lacks merit. Af-
ter a “conscientious examination” of the case, the attorney must “request permis-
sion to withdraw” and submit a “brief referring to anything in the record that
might arguably support the appeal.” Id. at 744. The attorney must “isolate pos-
sibly important issues” and “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). After we assess the brief submitted by
counsel raising anything in the record that might arguably support an appeal,
and after we have examined any points raised by the appellant speaking on his
own behalf and have thoroughly examined the record, we may grant the request
to withdraw and dismiss the appeal as frivolous. See Anders, 386 U.S. at 744 .
Consistent with Anders, Hawkins submitted a brief to support his conten-
tion that Davis’s arguments are frivolous, principally because Davis’s decision
to sign the plea agreement constituted a waiver of his right to appeal. “An ap-
pellate ‘waiver is a contractual matter, and contractual rights may be waived by
the failure to assert them,’” so it is “defense counsel’s obligation to ascertain and
certify that the Government would rely on the defendant’s appellate waiver be-
fore moving to withdraw.” Acquaye, 452 F.3d at 381-82 (quoting United States
v. Lang, 440 F.3d 212, 213 (5th Cir. 2006)).
Hawkins states that on July 18, 2006, more than one year before he filed
his motion to withdraw, the United States Attorney’s Office (“USAO”) for the
Northern District of Texas informed the Federal Public Defender’s Office
(“FPDO”) that the government would “be asserting their contractual rights set
2
Davis was given an extension of time to respond to the motion, but he has not filed a
response.
2
No. 07-10177
forth in plea agreements and enforcing the appeal waiver in all cases.” He also
notes that at Davis’s sentencing hearing, the government informed the district
court that there was an appellate waiver in the plea agreement.
In United States v. Mathews, No. 07-10200 (5th Cir. Oct. 2, 2007), this
court, by a single-judge order, directed Hawkins to explain either why reliance
on this general statement from the USAO that it would seek to enforce appellate
waivers in all cases complies with Acquaye or else to obtain a case-specific certifi-
cation that the waiver would be invoked. Hawkins replied by stating that “the
[USAO’s] practice [had] evolved slightly” and that the USAO had informed him
that “if defense counsel sees a valid reason or ground for the [USAO] not to in-
voke the appeal waiver, such as that a manifest miscarriage took place, then the
[USAO] will entertain the lawyer’s arguments and determine if they will or will
not enforce the waiver.” In response to the order in Mathews, Hawkins certified
to the court that the USAO had decided to enforce the waiver as to Mathews.
Here, Hawkins’s Acquaye statement does not indicate that he has consult-
ed with the USAO as to Davis’s case. Hawkins, however, argues that he has sat-
isfied Acquaye by his invocation of the USAO’s general statement to the FPDO.
This is insufficient. Although HawkinsSSas an officer of the courtSSis entitled
to a presumption that he has “properly discharged [his] duty,” Dukes v. S.C. Ins.
Co., 770 F.2d 545, 547 (5th Cir. 1985), the law is pellucid that the “government
cannot rely on defense counsel’s raising the argument in an Anders brief as a
substitute for fulfilling its own obligation to seek enforcement of the plea agree-
ment.” Acquaye, 452 F.3d at 382 (quoting United States v. Calderon, 428 F.3d
928, 931 (10th Cir. 2005)).
If the USAO had formally committed itself always to enforce appellate
waivers, Hawkins’s position would be stronger. But, as Hawkins conceded in
Mathews, that is not the USAO’s policy. Instead, the USAO’s determinations are
necessarily case-specific in that it chooses to not enforce appellate-waiver provi-
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No. 07-10177
sions under some circumstances.
Before filing this motion to withdraw, Hawkins apparently inferred that
the USAO would opt to enforce the waiver provisions as to Davis. Although we
are confident Hawkins is acting completely in good faith, that was not his call
to make, because “[d]efense counsel is not the government, and has no authority
to waive or invoke arguments on behalf of the government.” Id. (quoting Calder-
on, 428 F.3d at 931). “[I]t is defense counsel’s obligation to ascertain and certify
that the Government would rely on the defendant’s appellate waiver before mov-
ing to withdraw.” Id. (emphasis added). “[I]t surpasses any legitimate under-
standing of the ethical obligations of counsel to the court to say that defense
counsel’s candid assessment of legal issues [can] satisfy the government’s obliga-
tions.” Id. (quoting Calderon, 428 F.3d at 931).
Because there is no indication in the record that the government has made
any case-specific determination as to Davis, we DENY the motion to withdraw
without prejudice to its renewal. We direct Hawkins promptly to file a letter
supplement to his Anders brief stating the government’s position with respect
to the enforcement of the plea agreement’s appellate-waiver provisions. We re-
tain appellate jurisdiction over the appeal, pending receipt of the letter and fur-
ther action by this court.
4