United States v. Flores
2011 U.S. App. LEXIS 1932
5th Cir.2011Background
- Flores pleaded guilty to being found illegally in the U.S. after a prior deportation (8 U.S.C. §1326).
- Plea agreement did not contain an appeal waiver; factual basis showed removal May 10, 2006 and re-entry July 8, 2009.
- PSR: total offense level 21, including a 16-level enhancement for prior deportation after a felony violence conviction (aggravated assault with deadly weapon, December 2000).
- Criminal history category III; guideline range 46–57 months; Flores did not object to PSR calculations.
- District court imposed 46-month sentence and 3 years of supervised release.
- Defense counsel filed an Anders brief and motion to withdraw; Flores did not respond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Anders brief identifies nonfrivolous issues | United States contends the brief is adequate and no meritorious issues exist. | Flores/Defense argues there may be nonfrivolous issues, but counsel elected to withdraw. | Court adopts Seventh Circuit approach; finds no nonfrivolous issues; dismisses appeal as frivolous. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (counsel must support appeal and may withdraw only if wholly frivolous with a record referencing potential issues)
- United States v. Johnson, 527 F.2d 1328 (5th Cir. 1976) (directs that Anders brief should isolate potentially important issues with record references)
- United States v. Wagner, 103 F.3d 551 (7th Cir. 1996) (adopts a middle-ground approach to reviewing Anders briefs without scouring the entire record)
- United States v. Youla, 241 F.3d 296 (3d Cir. 2001) (Third Circuit adopts the Anders-review approach)
- United States v. Ripoll, 123 F. App’x 479 (3d Cir. 2005) (unpublished; allied to Anders approach)
- United States v. Rojas-Luna, 522 F.3d 502 (5th Cir. 2008) (reaffirmed that removal facts must be admitted or proven beyond a reasonable doubt)
- Anders, 386 U.S. at 744, Anders (1967) (quote describing the attorney's duties under Anders)
- McCoy v. Court of Appeals, 486 U.S. 429, 486 U.S. 429 (1988) (lawyer must present claims candorously to the court)