United States v. Eleazar Flores , 540 F. App'x 351 ( 2013 )

Case: 12-20226 Document: 00512384541 Page: 1 Date Filed: 09/24/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 24, 2013
No. 12-20226
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ELEAZAR FLORES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-275-12
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Eleazar Flores has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). We
have reviewed counsel’s brief and the relevant record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous issue
for appellate review with regard to the issues directly addressed in counsel’s
brief. However, counsel’s brief fails to address the sentencing court’s erroneous
consideration of defendant’s thirteen unadjudicated arrests, which were
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-20226 Document: 00512384541 Page: 2 Date Filed: 09/24/2013
No. 12-20226
unaccompanied by a factual recitation of the underlying conduct. United States
v. Johnson, 648 F.3d 273, 277-78 (5th Cir. 2011) (finding that a sentencing court
commits error when it considers the defendant’s “bare arrest record.”). See also
United States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012) cert. denied, 133 S. Ct.
1845 (2013) (“If the factual recitation lacks sufficient indicia of reliability, then
it is error for the district court to consider it at sentencing—regardless of
whether the defendant objects or offers rebuttal evidence.”). After review of the
relevant portions of the record, we find that the district court may have
committed reversible error when imposing a mid-guideline sentence based in
part on its consideration of the defendant’s bare arrest record contained in the
Presentence Report.
We do not decide today whether Flores will be able to establish, under
plain error review, that the district court’s error was clear or obvious and
affected Flores’ substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). However, when considering counsel’s motion to withdraw under Anders,
this Court does not have to find that the Appellant will necessarily prevail on
the merits of his appeal; rather the panel must consider whether the appeal
may present a non-frivolous argument. United States v. Davis, 291 F. Appx 563,
567 (5th Cir. 2008).
Accordingly, counsel is directed to file supplemental briefing under Anders
to address this issue, or in the alternative, file a merits brief. Counsel’s motion
for leave to withdraw is DENIED, subject to our reconsideration of counsel’s
supplemental briefing consistent with this opinion.
Flores’ pro se motion for an extension of time to file a response to counsel’s
Anders brief is DENIED AS MOOT, subject to counsel’s supplemental filing, and
may be reasserted in response to counsel’s further briefing.
2