UNITED STATES of America, Plaintiff-Appellee v. Manuel PESINA-RODRIGUEZ, also known as Felipe Gomez, Defendant-Appellant

United States Court of Appeals for the Fifth Circuit2016-06-14No. No. 15-10749

825 F.3d 787

Summary · law.co

Holding. The court held that an Anders brief satisfies the standard for withdrawal when counsel has ascertained and certified that the government will file a meritorious motion to dismiss an untimely appeal. The appeal was dismissed as frivolous.

A defendant convicted of illegal reentry filed a pro se notice of appeal nearly three months after judgment was entered, well outside the 14-day deadline required by appellate rules. His appointed appellate counsel filed an Anders brief concluding the appeal was frivolous due to the untimely filing. Before doing so, counsel confirmed with the government that it would move to dismiss the appeal as untimely.

The court addressed whether counsel satisfied Anders requirements by merely asserting the appeal was untimely, or whether counsel must first verify the government's actual intent to enforce the deadline. The court held that counsel must ascertain and certify in advance that the government will file a meritorious motion to dismiss the appeal, similar to the court's prior requirement for appellate waivers. Because counsel here had already obtained such confirmation from the government, the requirements were satisfied.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether Anders requirements are satisfied when counsel asserts an appeal is untimely but the government has not indicated intent to enforce the deadline
Whether counsel must verify government intent to move to dismiss before withdrawing in cases involving mandatory appellate filing deadlines
Application of Anders standards to procedurally defective appeals versus substantively frivolous ones

Procedural posture

Appointed appellate counsel filed an Anders brief seeking to withdraw, arguing the defendant's notice of appeal was untimely filed approximately three months after judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM:

We consider whether an Anders brief is appropriate when the defense lawyer filing it has confirmed that the government will file a meritorious motion to dismiss the appeal for being untimely.

Manuel Pesina-Rodriguez pleaded guilty to illegal reentry. Final judgment was entered on May 1, 2015. Almost three months later, on July 30, Pesina mailed a pro se “Motion” that we will construe as a notice of appeal filed as of the mailing date. See Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (holding that a pro se prisoner’s notice of appeal shall be deemed filed as of the moment it is delivered to prison officials for mailing).

The Federal Public Defender appointed to represent Pesina on appeal filed an Anders brief. The brief concluded that Pesina’s appeal was frivolous because the notice of appeal was not filed within 14 days of the entry of judgment. See Fed. R. App. P. 4(b)(1)(A). Although not jurisdictional, the time limits in Rule 4(b)(1)(A) are mandatory claims-processing rules. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007) (explaining that the time limit is “mandatory, but not jurisdictional”) (citing Bowles v. Russell, 551 U.S. 205, 207-14, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007)). Consequently, in United States v. Hemandez-Gomez, we granted the government’s motion to dismiss an appeal because. the notice of appeal was untimely. 795 F.3d 510, 511 (5th Cir. 2015). Here, given that the government position on whether to seek dismissal of an untimely appeal is outcome determinative, Pesina’s counsel conferred with the government and was informed that the government would seek to dismiss the appeal for being untimely.

We have found that similar inquiries about the government’s intent to enforce appellate waivers satisfy the Anders standard and see no good reason not to follow the same practice when it comes to untimely appeals. In United States v. Acquaye, we found insufficient the defense counsel’s mere assertion that the appellate waiver in defendant’s plea agreement foreclosed any appeal. 452 F.3d 380, 381-82 (5th Cir. 2006). The reason is that the government may choose not to enforce the waiver. Id. We explained that the proper procedure is for defense counsel “to ascertain and certify that the Government would rely on the defendant’s appellate waiver before moving to withdraw.” Id. at 382. In both the case of waived appeals and the one we deal with here involving an indisputably untimely appeal, there is a procedural mechanism that, if invoked by the Government, would foreclose the appeal. Following Acquaye, we hold that Anders requirements are satisfied when defense counsel has ascertained and certified that the government would file a meritorious motion to dismiss the appeal as untimely.

Unlike in Acquaye, defense counsel here has already complied with this requirement. Defense counsel’s motion to withdraw therefore is GRANTED and the APPEAL IS DISMISSED as frivolous. See 5th CiR. R. 42.2.

. Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after a conscientious examination” of the case, a court-appointed attorney may request permission to withdraw as counsel if he finds the case to be wholly frivolous and includes a brief referring to anything in the record that might arguably support the appeal”).

. The Anders brief notes that because it was styled as a Motion to Appeal the [T]erm of Supervi[s]ed Release [I]mposition And the 20 Months Sentence [I]mposition” and did not specify the court to which the appeal was taken, Pesina’s notice of appeal” may not have satisfied the requirements of Fed. R. App. P. 3. Because we can resolve this motion without addressing the sufficiency of Pesina’s notice, we will assume the notice was adequate.

. We previously almost had the opportunity to address whether the reasoning in Acquaye should be extended to untimely notices of appeal. United States v. Jenkins, 328 Fed. Appx. 915 (5th Cir. 2009). But perhaps unsurprisingly, after ordering merits briefing on the issue, the government filed a motion to dismiss the appeal because it was untimely. Id. at 916. The appeal was therefore dismissed without addressing the Anders question. Id.