     Case: 15-10749       Document: 00513546960          Page: 1     Date Filed: 06/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 15-10749                         United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
UNITED STATES OF AMERICA,                                                      June 14, 2016
                                                                              Lyle W. Cayce
               Plaintiff - Appellee                                                Clerk

v.

MANUEL PESINA-RODRIGUEZ, also known as Felipe Gomez,

               Defendant - Appellant




                    Appeal from the United States District Court
                         for the Northern District of Texas


Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
PER CURIAM:
       We consider whether an Anders 1 brief is appropriate when the defense
lawyer filing it has confirmed that the government will file a meritorious
motion to dismiss the appeal for being untimely.
       Manuel Pesina-Rodriguez pleaded guilty to illegal reentry.                              Final
judgment was entered on May 1, 2015. Almost three months later, on July 30,
Pesina mailed a pro se “Motion” that we will construe as a notice of appeal filed



       1 Anders v. State of California, 386 U.S. 738 (1967) (holding that after a “conscientious
examination” of the case, a court-appointed attorney may request permission to withdraw as
counsel if he finds the case to be wholly frivolous and includes a “brief referring to anything
in the record that might arguably support the appeal”).
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                                      No. 15-10749
as of the mailing date. See Houston v. Lack, 487 U.S. 266, 270 (1988) (holding
that a pro se prisoner’s notice of appeal shall be deemed filed as of the moment
it is delivered to prison officials for mailing).
       The Federal Public Defender appointed to represent Pesina on appeal
filed an Anders brief. The brief concluded that Pesina’s appeal was frivolous
because the notice of appeal was not filed within 14 days of the entry of
judgment. 2 See FED. R. APP. P. 4(b)(1)(A). Although not jurisdictional, the time
limits in Rule 4(b)(1)(A) are mandatory claims-processing rules. United States
v. Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007) (explaining that the time
limit is “mandatory, but not jurisdictional”) (citing Bowles v. Russell, 551 U.S.
205, 207–14 (2007)). Consequently, in United States v. Hernandez-Gomez, we
granted the government’s motion to dismiss an appeal because the notice of
appeal was untimely. 795 F.3d 510, 511 (5th Cir. 2015). Here, given that the
government position on whether to seek dismissal of an untimely appeal is
outcome determinative, Pesina’s counsel conferred with the government and
was informed that the government would seek to dismiss the appeal for being
untimely.
           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. Id. We explained that the proper procedure


       2 The Anders brief notes that because it was styled as a “Motion to Appeal the [T]erm
of Supervi[s]ed Release [I]mposition And the 20 Months Sentence [I]mposition” and did not
specify the court to which the appeal was taken, Pesina’s “notice of appeal” may not have
satisfied the requirements of FED. R. APP. P. 3. Because we can resolve this motion without
addressing the sufficiency of Pesina’s notice, we will assume the notice was adequate.
                                             2
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                                      No. 15-10749
is for defense counsel “to ascertain and certify that the Government would rely
on the defendant’s appellate waiver before moving to withdraw.” 3 Id. at 382.
In both the case of waived appeals and the one we deal with here involving an
indisputably untimely appeal, there is a procedural mechanism that, if invoked
by the Government, would foreclose the appeal. Following Acquaye, we hold
that Anders requirements are satisfied when defense counsel has ascertained
and certified that the government would file a meritorious motion to dismiss
the appeal as untimely.
       Unlike in Acquaye, defense counsel here has already complied with this
requirement. Defense counsel’s motion to withdraw therefore is GRANTED
and the APPEAL IS DISMISSED as frivolous. See 5th CIR. R. 42.2.




       3 We previously almost had the opportunity to address whether the reasoning in
Acquaye should be extended to untimely notices of appeal. United States v. Jenkins, 328 F.
App’x 915 (5th Cir. 2009). But perhaps unsurprisingly, after ordering merits briefing on the
issue, the government filed a motion to dismiss the appeal because it was untimely. Id. at
916. The appeal was therefore dismissed without addressing the Anders question. Id.
                                             3
