                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 December 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-10142
                       USDC No. 6:04-CR-40-ALL


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JESSE RAY WESTBROOK,

                                     Defendant-Appellant.

                         --------------------

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

                         --------------------

O R D E R:

     Jesse Ray Westbrook pleaded guilty to possession of cocaine

with intent to manufacture cocaine base.    Westbrook’s plea

agreement contained a waiver-of-appeal provision.      Appointed

counsel for Westbrook has requested leave to withdraw and has

filed a brief as required by Anders v. California, 386 U.S. 738

(1967).   If, on appeal, the Government does not seek to enforce

an appeal waiver, the waiver is not binding.       United States v.

Story, 439 F.3d 226, 231 (5th Cir. 2006).       However, in this case

the Government has not had an opportunity to address Westbrook’s

appellate waiver.
                              O R D E R
                            No. 05-10142
                                 -2-

     “[I]t is defense counsel’s obligation to ascertain and

certify that the Government would rely on the defendant’s

appellate waiver before moving to withdraw.”   United States v.

Acquaye, ___ F.3d ___, 2006 WL 1549951 at *2 (5th Cir. June 8,

2006).   Accordingly, the motion to withdraw is DENIED without

prejudice to its renewal.   Westbrook’s counsel is directed to

file a new Anders brief stating the Government’s position with

respect to the waiver or a brief on the merits of this appeal

within 30 days of the date of this order.   See id.




                                       /s/ W. Eugene Davis
                                       W. EUGENE DAVIS
                                       UNITED STATES CIRCUIT JUDGE
