United States v. David Garland

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 31, 2011
No. 09-50317 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DAVID WAYNE GARLAND
Defendant- Appellant
Appeal from the United States District Court
for the Western District of Texas, Waco Division
USDC No 6:08-CR-00149
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant David Wayne Garland appeals after his guilty plea conviction
for conspiracy to possess with intent to distribute crack cocaine in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 21 U.S.C. § 846. Garland’s counsel has
filed a motion to withdraw and a brief that relies on Anders v. California, 386
U.S. 738 (1967), stating that the appeal is without merit. Because the brief filed
in this case is wholly inadequate we deny the motion to withdraw and order
supplemental briefing.
No. 09-50317
I.
Garland pled guilty without a plea agreement to one count of conspiracy
to possess with intent to distribute crack cocaine. Garland was arrested after
he facilitated a drug buy made by investigators with the Waco Police
Department. Garland did not object to the pre-sentence report, although he did
suggest that his criminal history was over-represented and requested the court
to impose a sentence below the recommended guideline range of 151 to 188
months. The district court sentenced Garland to 151 months imprisonment and
Garland appeals.
II.
Garland’s counsel has filed a motion to withdraw and a brief based on
Anders. We write to clarify the standard for determining whether to accept a
motion from a criminal defendant’s lawyer to withdraw from representing the
defendant on appeal on the basis that there are no nonfrivolous grounds for
appeal under Anders, and in doing so to reiterate the minimum standards for an
adequate Anders brief.
The directive in Anders is clear. Rather than simply filing a brief that is
little more than a no-merits letter,
Counsel should, and can with honor and without conflict, be of more
assistance to his client and to the court. His role as advocate
requires that he support his client's appeal to the best of his ability.
Of course, if 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.
Anders v. California, 386 U.S. 738, 744 (1967). More than thirty years ago, we
directed counsel filing an Anders brief that “Anders requires counsel to isolate
possibly important issues and to furnish the court with references to the record
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No. 09-50317
and legal authorities to aid it in its appellate function.” United States v.
Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976).
The Fifth Circuit’s website provides a detailed checklist and outline for
Anders briefs for guilty pleas and for bench or jury trials. See
http://www.ca5.uscourts.gov. The guidelines and checklist are under the
“Attorney Information Section.” This checklist is designed to assist counsel in
preparing a brief that will satisfy the standards of Anders in this circuit.
Counsel obviously has broad discretion in the preparation of his brief. For
example, he can cover the material set forth in the checklist in narrative form,
or cut and paste the outline from the checklist and answer the questions called
for in it. No particular form of brief is required. The point is that counsel should
demonstrate that he has considered the issues set forth in the checklist to the
extent they apply to her case. This will assist our review of the brief to
determine whether it is adequate.
Barring unusual circumstances in the proceedings, a brief submitted by
an attorney considering the issues set forth in the checklist and addressing the
areas of inquiry appropriate to his case will be facially adequate, meaning that
it meets both the requirement placed on counsel to “support his client’s appeal
to the best of his ability,” Anders, 386 U.S. at 744, and “to act with candor [to the
court] in presenting claims for judicial resolution,” McCoy v. Court of Appeals,
Dist. 1, 486 U.S. 429, 440 (1988). As we decided in a companion Anders case also
issued today, United States v. Flores, No. 09-41281, if counsel submits a brief
meeting this standard, we will no longer independently scour the record looking
for nonfrivolous issues.
All counsel should utilize the checklist to ensure that criminal appeals are
adequately defended, and to conserve the resources of counsel and the court by
avoiding orders like the one we must issue in this case, requiring counsel to redo
the appellate brief. In addition, to fully comply with Anders, counsel must
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No. 09-50317
provide a copy of his brief to the defendant and the brief should include in the
Certificate of Service a statement that this requirement has been complied with.
Anders, 386 U.S. at 744.
The brief in this case fails to satisfy these standards. The brief is entirely
conclusory and contains no meaningful discussion of the district court
proceedings or any potential issues for appeal. If counsel had followed the
Anders Case Guidelines as a checklist for preparing his brief, it would have led
him to address several points of potential concern.
Because the defendant pled guilty, the checklist would have guided
counsel to review the plea colloquy and consider whether the dictates of Rule 11
were followed. The Anders Case Guidelines would also have led counsel to
address in further detail the sentencing of the defendant. The brief in this case
states that the defendant suggested to the court that his criminal history was
over-represented, given the nature of his prior convictions, but provides no facts
about those prior convictions or any assessment of the validity of this challenge
or citation to relevant case law. Counsel also failed to address the sentencing
proceedings and their compliance with Rule 32. The brief contains only a two-
sentence statement that the guideline range was calculated correctly, there were
no objections, and appellant was sentenced at the bottom of the guideline range,
leaving nothing to review.
The record also reflects that Garland has exercised his option to file a brief
after receiving a copy of the brief filed by appointed counsel. In that brief,
Garland raises issues relating to his characterization as a career offender and
the associated question whether he was adequately and fully advised of his
rights before entering a guilty plea. In addition he challenges the imposition of
a fine with inadequate factual findings as to his financial resources. Without
expressing any opinion as to the merits of these issues, we note that they are
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possible grounds for inquiry when counsel makes another attempt to comply
with Anders.
III.
Accordingly, we ORDER counsel for Garland to file within 30 days a
supplemental brief that comports with Anders following the guidelines set forth
above or, in the alternative, a brief on the merits addressing any nonfrivolous
issues that counsel deems appropriate. If counsel files a supplemental Anders
brief, he should demonstrate that he has addressed the issues listed on the
Anders checklist found on this court’s website at http://www.ca5.uscourts.gov
insofar as it applies to his case, to assist the court in its review.
The motion to withdraw is CARRIED with this case. Counsel should move
to withdraw this motion if a merits brief is filed.1
1
We have incorporated a number of changes in the opinion suggested by other judges
on the court and, with those changes, all active judges have assented.
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