     Case: 13-41272   Document: 00512856152        Page: 1   Date Filed: 12/03/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 13-41272                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         December 3, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JOSE FERNANDO POLANCO-OZORTO,

             Defendant - Appellant




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


Before KING, JOLLY, and COSTA, Circuit Judges.
PER CURIAM:
      The Federal Public Defender appointed to represent Defendant-
Appellant Jose Fernando Polanco-Ozorto has moved for leave to withdraw and
has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967),
and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). This case presents a
narrow issue of first impression: where a criminal defendant who has pleaded
guilty signs a statement indicating that he wishes to appeal only his sentence,
and where the defendant’s appellate counsel files an Anders brief addressing
only issues related to sentencing, may the defendant raise issues related to his
guilty plea and conviction in response to the Anders brief? For the reasons
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                                      No. 13-41272
below, we hold that the defendant may not, and that under such circumstances,
we will consider only the issues addressed in the Anders brief.
      Polanco-Ozorto pleaded guilty to being an alien unlawfully found in the
United States after deportation. The district court sentenced him to a term of
imprisonment of 72 months, within the Guidelines range of 70 to 87 months.
Following his sentencing and prior to filing a notice of appeal, Polanco-Ozorto
signed a document titled “DECISION REGARDING MY APPEAL,” 1 indicating
that, after discussing his appeal rights with his attorney, he wished to appeal
his sentence only. Consequently, Polanco-Ozorto’s counsel never ordered a
transcript of the rearraignment, and counsel filed an Anders brief
pretermitting discussion of Polanco-Ozorto’s guilty plea proceedings and his
conviction.      The brief addresses only issues related to Polanco-Ozorto’s
sentencing. In his pro se response to the Anders brief, Polanco-Ozorto contends
that his counsel’s Anders brief is insufficient because it “does not address
whether there are any nonfrivolous issues related to [his] guilty plea.”
Although Polanco-Ozorto concedes that he signed the document indicating that
he did not wish to appeal his conviction, he now believes that it is “in [his] best
interest to challenge the validity of the guilty plea.”             He argues that his
appellate counsel, who did not represent him in the proceedings below, 2 should
have consulted with him “on whether he still chooses not to challenge his guilty
plea”—rather than relying on the signed document alone.
      In United States v. Garcia, 483 F.3d 289, 289 (5th Cir. 2007), this court
held that counsel need not “file a transcript and brief the issues surrounding
[a defendant’s guilty] plea” in an Anders brief where “the record reflects that
the defendant has chosen not to challenge the plea.” This rule applies where



      1   The document is attached to the Anders brief filed by counsel.
      2   Polanco-Ozorto was represented by a different Federal Public Defender below.
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                                       No. 13-41272
the court can “determine from the record that the decision was the defendant’s
own”—e.g., where “a defendant’s response to counsel’s Anders brief . . . rais[es]
issues unrelated to the plea without questioning any plea related issue,” or
where there is “a written statement by the defendant that after receiving the
advice of counsel he does not wish to challenge his guilty plea.” Id. at 291.
Garcia does not directly address the situation here, where a defendant has
signed a written statement indicating that he does not wish to challenge his
plea, but later raises issues related to his plea in response to his counsel’s
Anders brief.      Today we hold that where a defendant provides sufficient
indication (i.e., consistent with Garcia) that he intends to challenge only his
sentence, the defendant may not revoke that decision after counsel has filed an
Anders brief pretermitting any discussion of a defendant’s guilty plea. 3
       First, there is no dispute that Polanco-Ozorto filed a written statement
indicating that he did not wish to challenge his plea—which, under Garcia,
permits counsel to pretermit discussion of that plea in an Anders brief. Id. 4
Moreover, the rule we adopt today follows from general waiver principles. For
example, we have held that a criminal defendant’s motion to proceed pro se on
appeal will be denied if it is filed after the defendant’s counsel has filed an
Anders brief, as such a request is invoked “too late.” United States v. Wagner,



       3 In an unpublished case, we addressed a scenario in which the defendant filed a
response to an Anders brief arguing that counsel “has rendered ineffective assistance on
appeal by failing to order a rearraignment transcript and assess whether the district court
properly admonished him about certain aspects of his plea.” United States v. Flores, --- F.
App’x ---, No. 13-40960, 2014 WL 4923087, at *1 (5th Cir. Oct. 2, 2014) (unpublished). We
held that, “[i]n light of [the defendant]’s declaration evincing his intent to appeal only his
sentence, [counsel]’s omissions in this regard are not objectively unreasonable.” Id. There,
however, because we had access to the rearraignment transcript, we further determined that
the defendant could not show any prejudice even “assuming deficient performance,” as the
transcript made clear that there were no nonfrivolous issues related to the guilty plea. Id.
       4 Although a defendant’s response to an Anders brief that is silent as to plea issues

also justifies such pretermission, see Garcia, 483 F.3d at 289, that does not mean that a
response that raises plea issues renders ineffective a defendant’s prior written waiver.
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                                 No. 13-41272
158 F.3d 901, 902–03 (5th Cir. 1998). Furthermore, if a defendant such as
Polanco-Ozorto can later broaden the scope of his appeal in contradiction of his
prior expressed intent, this could create significant administrative burdens on
the courts and on appellate counsel. Such a rule would create the possibility
of two rounds of Anders briefing—one addressing the issues the defendant
initially indicates he wants to challenge, and another addressing any
additional issues raised in response to the first Anders brief. This additional
round of briefing may also require counsel to order transcripts related to these
new issues (as here, a rearraignment transcript). In Wagner, we were driven
by such administrative concerns, noting that “[m]uch time, preparation, and
careful consideration goes into the filing of an Anders brief.” Id. at 902. We
reasoned that, “[t]o allow criminal defendants to file a request to proceed pro
se on appeal only after an Anders brief has been filed would open the door to
abuse of this valuable sixth amendment right by allowing it to be used to
obstruct the orderly procedure in the courts or to interfere with the fair
administration of justice.”    Id. (internal citations and quotation marks
omitted). Similar considerations apply here. Adopting a contrary rule may
also undermine the effect of our holding in Garcia, as appellate counsel would
be unlikely to pretermit discussion even of issues the defendant previously
indicated he did not desire to challenge—since the defendant could later
change his mind.
      Accordingly, we will not address the issues raised in Polanco-Ozorto’s
response related to his plea and conviction. We have reviewed counsel’s brief
and the relevant portions of the record, as well as Polanco-Ozorto’s response to
the extent it addresses sentencing issues.         We concur with counsel’s
assessment that the appeal presents no nonfrivolous issues for appellate
review. Accordingly, counsel’s motion for leave to withdraw is GRANTED,


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                              No. 13-41272
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSSED. See 5TH CIR. R. 42.2.




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