United States v. Gerardo Garcia-Antonio ( 2011 )

FILED
UNITED STATES COURT OF APPEALS APR 11 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 09-10084
Plaintiff - Appellee, D.C. No. 2:08-CR-01208-MHM
District of Arizona,
v. Phoenix
GERARDO GARCIA-ANTONIO,
ORDER
Defendant - Appellant.
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges
Counsel for appellant has filed a brief stating that he finds no meritorious
issues for review and a motion to withdraw as counsel of record pursuant to Anders
v. California, 386 U.S. 738 (1967). No pro se supplemental brief or answering
brief has been filed.
Our independent review of the record, see Penson v. Ohio, 488 U.S. 75, 83-
84 (1988), discloses the following potentially arguable issue for direct appeal:
Does Garcia-Antonio’s prior conviction under California Penal Code section
288(c) qualify as a crime of violence warranting a sixteen-level increase under
U.S.S.G. § 2L1.2(b)(1)(A)(ii)? See United States v. Castro, 607 F.3d 566, 567 (9th
Cir. 2010), which was filed after briefing was completed.
Counsel’s motion to withdraw is denied.
The Anders brief filed December 21, 2009 is stricken. Counsel may brief
any issues deemed appropriate, but in particular shall address the issue identified
above. Appellant’s replacement opening brief and any supplement to the excerpts
of record filed December 23, 2009 are due June 6, 2011; appellee’s brief is due
July 6, 2011; the optional reply brief is due within 14 days after service of
appellee’s brief.
The clerk shall serve a copy of this order on appellant personally, as well as
on appellee James Knapp, Assistant U.S. Attorney, U.S. Attorney’s Office, Two
Renaissance Square, 40 N. Central Ave. Ste. 1200, Phoenix, Arizona 85004-4408.
This panel does not retain jurisdiction over the appeal.
2 09-10084