       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Olan-Navarro               No. 01-5309
    ELECTRONIC CITATION: 2003 FED App. 0412P (6th Cir.)
                File Name: 03a0412p.06                    DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,
                                                          APPELLATE SECTION, Washington, D.C., Tracy L. Berry,
                                                          ASSISTANT UNITED STATES ATTORNEY, Memphis,
UNITED STATES COURT OF APPEALS                            Tennessee, for Appellee.
              FOR THE SIXTH CIRCUIT                         ROGERS, J., delivered the opinion of the court, in which
                _________________                         SUHRHEINRICH, J., joined. COLE, J. (p. 6), delivered a
                                                          separate concurring opinion.
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                            _________________
                                   -
                                   -  No. 01-5309                                 OPINION
            v.                     -                                          _________________
                                    >
                                   ,                         ROGERS, Circuit Judge. On November 27, 2000, Juan
 JUAN OLAN-NAVARRO ,               -                      Olan-Navarro pleaded guilty to illegally reentering the United
          Defendant-Appellant. -                          States after having been deported in violation of 8 U.S.C.
                                  N                       § 1326. The district court sentenced Olan-Navarro to
       Appeal from the United States District Court       incarceration for fifty-seven months and two years of
    for the Western District of Tennessee at Memphis.     supervised release, and imposed a special assessment of $100.
    No. 00-20139—Bernice B. Donald, District Judge.       The Assistant Federal Public Defender who had been
                                                          appointed to represent Olan-Navarro in the district court filed
              Argued: September 17, 2003                  a timely notice of appeal and subsequently, in accordance
                                                          with Anders v. California, 386 U.S. 738 (1967), filed a
        Decided and Filed: November 21, 2003              motion to withdraw and a brief explaining his conclusion that
                                                          there were no non-frivolous issues that Olan-Navarro could
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit           assert on appeal. This court ordered that Olan-Navarro be
                   Judges.                                appointed new counsel and directed counsel to brief the
                                                          question “Should a criminal defendant be represented on
                  _________________                       appeal by the same counsel who represented the defendant at
                                                          his guilty plea hearing or trial when that counsel proposes to
                       COUNSEL                            file an Anders brief on behalf of the defendant?” Newly
                                                          appointed counsel for Olan-Navarro has also briefed two
ARGUED: Chad A. Readler, JONES DAY, Columbus,             other issues: (1) “Does trial counsel’s service of an Anders
Ohio, for Appellant. Joseph C. Wyderko, UNITED STATES     brief on the Government undermine the adversarial system or
DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,                 violate the criminal defendant’s Sixth Amendment rights?”;
APPELLATE SECTION, Washington, D.C., for Appellee.        and (2) “Does Olan-Navarro’s fifty-seven month sentence
ON BRIEF: Chad A. Readler, JONES DAY, Columbus,           violate the Eighth Amendment’s prohibition against cruel and
Ohio, for Appellant. Joseph C. Wyderko, UNITED STATES     unusual punishment?” We affirm without reaching the

                            1
No. 01-5309               United States v. Olan-Navarro          3    4       United States v. Olan-Navarro                        No. 01-5309

question of whether to impose new requirements on the                 rights, Olan-Navarro has already received the relief he
court’s Anders procedures.                                            requested to redress the alleged violation — new counsel.1
  Olan-Navarro advances two arguments in support of his                 Finally, there is no merit to Olan-Navarro’s substantive
contention that the court should appoint new appellate                claim that his fifty-seven month sentence is so
counsel whenever court-appointed trial counsel files or               disproportionate and excessive that it violates the Eighth
proposes to file an Anders brief. First, Olan-Navarro contends        Amendment’s prohibition against cruel and unusual
that the appointment of new counsel in such circumstances is          punishment.2 “The Eighth Amendment, which forbids cruel
necessary to ensure that criminal defendants receive a                and unusual punishments, contains a ‘narrow proportionality
constitutionally-acceptable level of advocacy and                     principle’ that ‘applies to noncapital sentences.’” Ewing v.
representation under the Sixth Amendment of the                       California, 123 S.Ct. 1179, 1185 (2003) (plurality opinion)
Constitution. Second, Olan-Navarro contends that, because             (quoting Harmelin v. Michigan, 501 U.S. 957, 996-997
of its practical benefits, the court should establish such a rule     (1991) (Kennedy, J., concurring in part and concurring in
pursuant to its supervisory powers.                                   judgment)). The Eighth Amendment, however, does not
                                                                      mandate strict proportionality between crime and sentence;
   The court finds it unnecessary to reach the question of            instead, at most, only sentences that are “grossly
whether the court is constitutionally required to appoint new         disproportionate” to the crime are prohibited. Harmelin, 501
counsel where a criminal defendant’s trial counsel files or           U.S. at 1001.
proposes to file an Anders brief, as Olan-Navarro has, in fact,
been appointed new appellate counsel, rendering the question
moot. See, e.g. McPherson v. Mich. High Sch. Athletic Ass'n,
Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (“The test for
mootness is whether the relief sought would, if granted, make             1
                                                                            W e note, however, that two circuits expressly require such service.
a difference to the legal interests of the parties. . . .” (quoting   Third Cir. Local App. R. 109.2(a) and Eleventh Cir. R. 27-1(a)(8).
Crane v. Ind. Athletic Ass’n, 975 975 F.2d 1315, 1318 (7th            W hile the rules of the D.C. C ircuit may preclud e such service, Suggs v.
Cir. 1992))). Newly appointed counsel in the case argues              United States, 391 F.2d 971 , 974 -75 & n.5 (D .C. Circuit 1968), counsel
                                                                      points to no authority holding that such service is constitutionally
that it would be wise to require the appointment of new               precluded.
appellate counsel whenever trial counsel proposes to file an
Anders brief. If so, such a rule should be proposed pursuant              2
                                                                            This Court generally reviews a constitutional challenge to a criminal
to our court rulemaking procedures, where considerations pro          defendant’s sentence de novo. United States v. Tarwater, 308 F.3d 494,
and con can best be heard and weighed, rather than in an              517 (6th C ir. 2002). The government contends that Olan-Navarro failed
appeal in which new counsel has already been appointed.               to raise an Eighth Amendment challenge to his sentence in the district
                                                                      court, and, therefore, his should be reviewed under the “plain error”
  Similarly, the court declines to consider whether trial             standard. See, e.g., Johnson v. United States, 520 U.S. 461, 466-67
                                                                      (1997) (observing that appellate courts can correct errors not raised at trial
counsel’s service of an Anders brief on the government                if error is plain and affects substantial rights). Olan-Navarro concedes
violates a defendant’s Sixth Amendment rights, as that                that his counsel did not make an explicit Eighth Amendment challenge,
question is also moot in the instant case. Even assuming that         but argues that the argum ents ma de to the district court were sufficient to
such service does violate a defendant’s Sixth Amendment               preserve the erro r. It unnecessary to resolve the question of whether
                                                                      Olan-Navarro in fact raised an Eighth Amendment claim at the time of
                                                                      sentencing, as his claim fails even if he did.
No. 01-5309                  United States v. Olan-Navarro               5    6    United States v. Olan-Navarro                No. 01-5309

  Olan-Navarro was indicted on one count of violating                                            ___________________
8 U.S.C. § 1326(a) and (b) for reentering the United States
after being deported subsequent to the commission of an                                            CONCURRENCE
aggravated felony, 3 and pleaded guilty. Under 8 U.S.C.                                          ___________________
§ 1326, Olan-Navarro faced a maximum term of twenty years
of imprisonment. 8 U.S.C. § 1236(b)(2). Under the United                        R. GUY COLE, JR., Circuit Judge, concurring. I
States Sentencing Guidelines, however, the guideline                          respectfully concur in the majority opinion; however, I write
imprisonment range was fifty-seven to seventy-one months.4                    separately to address the majority’s conclusion that the merits
The district court sentenced Olan-Navarro to fifty-seven                      of rules governing the filing of an Anders brief are better left
months, the minimum guideline sentence, as well as two                        to this court’s rulemaking process.
years of supervised release, with the special condition that
Olan-Navarro be immediately deported at the termination of                      Because, as the majority acknowledges, the Sixth
his sentence. We simply cannot say that a sentence of fifty-                  Amendment issues surrounding the trial counsel’s filing of an
seven months is grossly disproportionate to the crime of re-                  Anders brief are moot, the merits of those claims are beyond
entering the United States after being deported subsequent to                 the jurisdiction of this Article III court. Any further comment
the commission of an aggravated felony.                                       pertaining to the constitutionality of current procedures
                                                                              governing the filing of an Anders brief is, therefore,
  The judgment of the district court is AFFIRMED.                             nonbinding dictum. Cf. Alexander v. Sandoval, 532 U.S. 275,
                                                                              282 (2001) (“[T]his Court is bound by holdings, not
                                                                              language.”)
                                                                                While I generally agree that new rules should be proposed
                                                                              and adopted in accordance with our established procedures,
                                                                              which include input from the legal bar, there are instances
                                                                              where it would be appropriate for this Court to adopt a new
                                                                              rule outside our established procedures. I would not foreclose
                                                                              the opportunity for a party to propose a new rule in the
                                                                              context of an appeal nor would I limit the ability of this Court
                                                                              to announce a new rule, if the circumstances so warranted.


    3
      Olan-Navarro had twice before been depo rted after entering the
United States without authorization. Prior to the first deportation, he was
twice convicted of burglary of a hab itation in Texas.

    4
      Olan-Na varro ’s total offense level was twenty-one, calculated from
a base offense level of eight, with a three-point reduction for acceptance
of responsibility and a sixteen-level increase for being deported after a
conviction for an aggravated felon y. His criminal histo ry placed him in
category IV.
