                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                        July 17, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-50256


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                versus

                        JOSE PRADO-PRADO,

                                                Defendant-Appellant.



          Appeal from the United States District Court
                for the Western District of Texas
                       (3:04-CR-983-ALL-FM)


Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.

PER CURIAM:*

     Concerning appointed counsel’s motion and brief for withdrawal

of counsel and dismissal of this appeal, in accordance with the

procedure mandated by Anders v. California, 386 U.S. 738 (1967),

primarily at issue is the sufficiency of the brief.      For reasons

stated in the brief, it addresses issues related to Jose Prado-

Prado’s sentencing, but not to his guilty plea. MOTION TO WITHDRAW

GRANTED; APPEAL DISMISSED.




     *
       Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
                                     I.

     In October 2004, Prado-Prado pleaded guilty to illegally

reentering the United States, in violation of 8 U.S.C. § 1326(a).

After being sentenced, inter alia, to 77 months in prison, he

timely appealed.

     Prado-Prado’s appointed counsel filed an Anders motion to

withdraw and an accompanying brief.            Notified of his right to

respond,   Prado-Prado   filed   a    motion   to   substitute   appointed

counsel.

                                     II.

     Anders, 386 U.S. at 744, established requirements for an

appointed counsel’s seeking to withdraw, because of a lack of

nonfrivolous issues, from representation of a defendant on his

direct criminal appeal.    “[I]f counsel finds his case to be wholly

frivolous, after a conscientious examination of it, he should so

advise the court and request permission to withdraw.         That request

must, however, be accompanied by a brief referring to anything in

the record that might arguably support the appeal”.        Id.   Appointed

counsel “must isolate possibly important issues and must furnish

the court with references to the record and legal authorities to

aid it in its appellate function”.         United States v. Cordero, 18

F.3d 1248, 1253 (5th Cir. 1994) (internal citation and quotation

marks omitted).




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                                      A.

      As discussed below, appointed counsel’s brief intentionally

does not address whether there are any nonfrivolous issues related

to   Prado-Prado’s   guilty   plea.        Such   an    omission   is   usually

understandable because guilty-plea defendants/appellants often do

“not benefit from invalidating a plea and going to trial”.               United

States v. Ibrahim, 62 F.3d 72, 73-74 (2d Cir. 1995) (holding that,

when an appellant has not requested the validity of his plea to be

challenged on appeal, the Anders brief should either:               (1) state

that counsel has determined “appellant would run an unacceptable

risk of adverse consequences in challenging the validity of a

plea”; or (2) discuss the plea’s validity and the presence of no

nonfrivolous issues regarding it).

      Here, the brief explained appointed counsel did “not review[]

the validity of Prado-Prado’s guilty plea, because [he] directed

counsel to appeal only the sentence imposed, and not to challenge

his guilty plea entered in this case”.                 (Emphasis added.)    As

noted, Prado-Prado’s response did not challenge this statement;

instead, he moved for substitute appointed counsel to assist in

seeking redress for potential sentencing issues on the basis that

appointed counsel failed to inform the district court that, shortly

before Prado-Prado’s late-January 2005 sentencing, the Supreme

Court decided United States v. Booker, 543 U.S. 220 (2005) (holding

sentencing guidelines are no longer mandatory, but advisory).


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     In Jones v. Estelle, 584 F.2d 687, 691 (5th Cir. 1978),

appointed counsel advised defendant to withdraw his appeal because

it was meritless.     Our court held Anders compliance was not

required because “Anders does not apply to an attorney whose client

instructs him ... to withdraw his appeal after being advised that

an appeal would be meritless and against his best interests”.      Id.

Nevertheless, we noted the client must “suggest[], acquiesce[] in,

or concur[] with” the decision to withdraw. Id. (internal citation

and quotation marks omitted).

     Here, appointed counsel is similarly not required to address

Prado-Prado’s guilty plea in his Anders brief because Prado-Prado

has instructed counsel not to do so.      Along this line, we construe

Prado-Prado’s   above-described        motion-to-substitute-appointed-

counsel response as confirming he does not desire on appeal to

challenge his guilty plea. Accordingly, the brief’s not addressing

that plea does not render it insufficient under Anders.

                                  B.

     As noted, Prado-Prado’s motion claims appointed counsel erred

by failing to inform the district court the sentencing guidelines

are advisory, not mandatory, pursuant to Booker.       Concerning this

challenge to his sentence, as well as the other aspects of the

sentence, our review of counsel’s Anders brief, the sentencing

transcript, and the record has revealed no nonfrivolous issues.



                                  4
      Concerning Booker, neither it, nor the guidelines’ now being

only advisory, were mentioned at sentencing by appointed counsel

(or the court).   Accordingly, for a claim that the sentence would

have been different, had the court been so informed, review would

be only for plain error.          At sentencing, the court’s statement of

reasons   provided:        “The    sentence   is   within   the     recommended

guideline range ... and the Court finds no reason to depart from

the sentence called for by application of the guidelines”.

     Under our post-Booker precedent, the guidelines were not

applied erroneously.       Accordingly, there would be no Booker error

other than to claim error simply because of the alleged application

of mandatory, rather than advisory, guidelines.             See United States

v. Villegas, 404 F.3d 355 (5th Cir. 2005); United States v. Mares,

402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).                 For

such error, the burden is on Prado-Prado to show this affected his

substantial rights — his sentence would have been different. Based

on the above statement of reasons, he cannot do so.                 Therefore,

Prado-Prado   would   be    unable    to    demonstrate,    inter    alia,   the

requisite reversible plain error under the applicable standard.

     Nor, as stated, for other aspects of the sentence are there

any nonfrivolous issues. In sum, the Anders standard is satisfied.




                                        5
                                  III.

     For the foregoing reasons, the Anders motion for leave to

withdraw   is   GRANTED;   Prado-Prado’s   motion   for   appointment   of

substitute counsel is DENIED; and his appeal is DISMISSED.




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