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United States v. Prado-Prado ( 2006 )


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  •                                                        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    this opinion should not be published and is not precedent except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).
    2
    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).
    3
    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.
    4
    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.
    5
    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.
    6
    

Document Info

Docket Number: 05-50256

Judges: Davis, Barksdale, Demoss

Filed Date: 7/17/2006

Precedential Status: Non-Precedential

Modified Date: 11/5/2024