ORDER
Defendant Ezequiel Perez Cervantes pled guilty to two drug-related counts and two firearm-related counts. At sentencing, Dеfendant received a significant downward departure under U.S.S.G. § 5K1.1 and was sentenced to a total sentence оf 111 months of imprisonment. On appeal, Defendant’s appointed counsel seeks to withdraw as counsel pursuant to Anders v. California,
Anders authorizes defense counsel to seek permission to withdraw from representing a client in a direct criminal appeal when counsel has consciеntiously examined the case and determined any appeal would be wholly frivolous. Id. at 744,
According to counsel’s Anders brief, counsel technically complied with this сlient-notification requirement by mailing a copy of his brief to Defendant. However, counsel has advised the cоurt that his client does not speak or read English, so Defendant will not be able to understand the English-language brief counsel sent to him. Counsel has also advised us he did not obtain or provide Defendant with a Spanish translation of the Anders brief, due mainly to budgetary constraints. Moreover, because Defendant has been transferred to a prison several states away from counsel’s office in Oklahoma, counsel
While we have not yet ruled on how an attorney should proceed in an Anders case when his client does not read or understand English, two of our sister circuits have considered this issue. Both concluded that due process requires more than the mailing of a brief or letter written in a languagе the client does not understand. See United States v. Leyba,
We agree with our sistеr circuits that defense counsel does not provide “notice ... of such nature as reasonably to convey the required information,” id., by sending only an English-language legal brief to a client who counsel knows does not read or undеrstand English. Due process requires more before we can rule on an Anders brief that will potentially result in the dismissal of the dеfendant’s appeal.
Our sister circuits have concluded that due process is satisfied if counsel communicates to the defendant, in a language the defendant understands, the substance of the Anders brief and the defendant’s rights under Anders. We agree with this analysis, and we аre persuaded the approach taken by these courts provides for sufficient notice to satisfy due рrocess without putting too great a burden on defense counsel or the court. We accordingly adopt the approach articulated in Leyba and Moreno-Torres.
[a]t a minimum, counsel should make reasonable efforts to contact the defendant in person or by teleрhone, with the aid of an interpreter if necessary, to explain to the defendant the substance of counsеl’s Anders brief, the defendant’s right to oppose it ..., and the likelihood that the brief could result in dismissal of the appeal.. Of сourse, written notice of the foregoing, in a language understood by the client, would also suffice.
Leyba,
We accordingly direct defense counsel to submit a declaration within thirty days
After counsel has complied with this order and the permitted time for a response hаs passed, we will adjudicate the merits of this appeal.
Notes
. We note that the Fourth Circuit has adopted a similar rulе through its standard form for the required certificate of service in an Anders case. See U.S. Court of Appeals for the Fourth Circuit, Certifícate of Service of An-ders Brief on Defendant, available at http:// www.ca4.uscourts.gov/docs/pdfs/certificate-of-service-оf-anders-brief.pdf?sfvrsn=6 (last accessed Mar. 19, 2015) (requiring counsel to certify, if the defendant required an interpreter at thе district court level, that "[t]he substance of the Anders brief and [the defendant's] right to file a supplemental pro se brief within 30 days” have been interpreted and communicated to the defendant over the telephone, in person, or in writing).