The written plea agreement expressly limits his right to appeal, but he nonetheless appeals. His federal public defender, Jason Hawkins, claims that the appeal is frivolous and, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Acquaye, 452 F.3d 380 (5th Cir. 2006), moves to withdraw as counsel.Anders established standards for a court-appointed attorney seeking to withdraw from a criminal appeal on the ground that the appeal lacks merit. After a "conscientious examination" of the case, the attorney must "request permission to withdraw" and submit a "brief referring to anything in the record that might arguably support the appeal.
Sears's counsel confirmed that the Government would seek to enforce the appeal waiver in Sears's plea agreement. See United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006). To determine whether the waiver bars his appeal, "we conduct a two-step inquiry: (1) whether the waiver was knowing and voluntary and (2) whether the waiver applies to the circumstances at hand, based on the plain language of the agreement."
This contention, which borders on being frivolous, is totally without merit. E.g., United States v. Acquaye, 452 F.3d 380, 381-82 (5th Cir. 2006) ("Ordinarily the government urges waiver of appeal after the defendant has filed either a merits brief or an Anders brief." (citation omitted)).
However, for future cases, counsel is reminded of her obligation to "ascertain and certify that the Government would rely on the defendant's appellate waiver before moving to withdraw" on that basis. United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006). [*] Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.
We have reviewed counsel's brief and the relevant portions of the record reflected therein. Counsel has not clearly certified, pursuant to United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006), whether the Government intends to enforce the appeal waiver. Counsel's statement that he "has no indication that the Government will fail to invoke [the] appellate waiver" does not adequately show enforceability of the waiver. See id. at 382.
On October 20, 2017, in ordering a new Anders brief, this court directed counsel once more to discuss the validity of the appeal waiver, its effect on any nonfrivolous appellate issues, and the Government's position as to the waiver. In his new Anders brief, counsel has not remedied his deficiencies and, specifically, still has not certified, under United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006), whether the Government intends to enforce the appeal waiver. Thus, counsel is ordered to show cause, within 15 days from the date of this opinion, why this court should not order at a minimum that payment for services rendered and expenses incurred in this appeal be disallowed and denied.
We have found that similar inquiries about the government's intent to enforce appellate waivers satisfy the Anders standard and see no good reason not to follow the same practice when it comes to untimely appeals. In United States v. Acquaye, we found insufficient the defense counsel's mere assertion that the appellate waiver in defendant's plea agreement foreclosed any appeal. 452 F.3d 380, 381–82 (5th Cir. 2006). The reason is that the government may choose not to enforce the waiver.
He fails to address whether any exception to the waiver applies or whether the Government has complied with the plea agreement. In addition, counsel still has not certified, pursuant to United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006), whether the Government intends to enforce the appeal waiver. He also entirely neglects to discuss the district court's compliance with Rule 32 of the Federal Rules of Criminal Procedure, and he does not address the procedural and substantive reasonableness of the sentence imposed in more than a conclusional way.
First, does the government intend to enforce the appeal waiver in Emeary's plea agreement? See United States v. Acquaye, 452 F.3d 380, 381–82 (5th Cir.2006) (defense counsel has the duty to determine such). If so, second, is the appeal waiver enforceable in the circumstances of this case? See Powell, 574 Fed.Appx. at 394 (discussing “miscarriage-of-justice” exception to the enforceability of appeal waivers); De Cay, 359 Fed.Appx. at 516 (same).
Counsel contends Anyanwu can raise no nonfrivolous issues on appeal because she agreed to waive her rights, including those conferred by 18 U.S.C. § 3742, to appeal from her conviction and sentence. Further, counsel has certified, as required by United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006), that the Government intends to rely on the appellate waiver in this case. Our independent review of the record and counsel's brief discloses no nonfrivolous issue for appeal.