           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 20, 2007

                                     No. 06-20251                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

SUNNY ALFRED IMEH

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   4:05-CR-50


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Sunny Alfred Imeh (“Imeh”) pleaded guilty to two counts of an indictment
charging him with conspiracy in violation of 18 U.S.C. § 371 and healthcare
fraud in violation of 18 U.S.C. § 1347. Pursuant to the plea agreement, Imeh
waived the ability to appeal his sentence, and agreed to cooperate with the
government. The government agreed to dismiss the remaining counts in the
indictment. Imeh never filed a timely notice of appeal. However, he did


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-20251

eventually file a pro se motion to file an untimely notice of appeal, arguing that
he instructed his original attorney to file an appeal, but his attorney never did.
The district court denied Imeh’s motion stating that Imeh had waived all
appellate rights in his plea agreement. Imeh appeals the district court’s order
denying his motion to file an untimely notice of appeal. We review the district
court’s denial for an abuse of discretion. See United States v. Clark, 193 F.3d
845, 846 (5th Cir. 1999).
      Imeh’s plea agreement provided specifically that:
      Defendant is aware that 18 U.S.C. 3742 affords a defendant the
      right to appeal the sentence imposed. The defendant waives the
      right to appeal the sentence imposed or the manner in which it was
      determined.... Defendant is aware that 28 U.S.C. 2255 affords the
      right to contest or “collaterally attack” a conviction or sentence after
      the conviction or sentence has become final. The defendant waives
      the right to contest his conviction or sentence by means of any post-
      conviction proceeding.

Based on the language in his plea agreement and his plea colloquy with the
district court, Imeh only waived the right to appeal his sentence. See United
States v. Palmer, 456 F.3d 484, 487-89 (5th Cir. 2006). He retained the right to
challenge his conviction on direct appeal. See id. Therefore, Imeh had not
waived all appellate rights, and the district court improperly relied on this
ground in denying his motion. Still, Imeh must provide a legal basis for his
motion in order to show an abuse of discretion in the district court’s denial.
      FED. R. APP. P. 4(b)(4) provides that a district court may extend the time
for filing a notice of appeal “upon a finding of excusable neglect or good cause.”
Imeh’s motion claimed that his original attorney failed to file a timely notice of
appeal despite Imeh’s request to do so. We have recognized that failure to file
a timely notice of appeal after being instructed to do so by a client constitutes
ineffective assistance, and thus excusable neglect. Clark, 193 F.3d at 846-47
(5th Cir. 1999). Because the district court disposed of Imeh’s motion on waiver

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grounds, no evidence has been heard on whether Imeh’s counsel performed
ineffectively in failing to file a timely notice. Therefore, we VACATE the district
court’s order denying the motion and REMAND for further proceedings to
evaluate whether Imeh can establish excusable neglect.
      Imeh’s appointed appellate counsel has moved for leave to withdraw and
has filed a brief as required by Anders v. California, 386 U.S. 738 (1967),
claiming that Imeh has no nonfrivolous grounds for appeal.            This court’s
independent review of counsel’s brief and the record discloses a nonfrivolous
issue as to whether the district court’s failure to admonish Imeh during the
rearraignment about its authority to order restitution constitutes reversible
plain error. An appeal focusing on the district court’s failure to admonish under
FED. R. CRIM. P. 11(c)(1) concerns the voluntariness of a defendant’s plea, and
thus the issue of conviction. See United States v. Glinsey, 309 F.3d 386, 394 (5th
Cir. 2000). Therefore, assuming Imeh is able to file a new notice of appeal, Imeh
has not waived his ability to appeal this issue through his prior waiver of
appellate rights concerning sentencing. Accordingly, the motion for leave to
withdraw is DENIED. If Imeh files a notice of appeal as to his conviction,
counsel is ORDERED to submit a brief addressing this issue and any other
nonfrivolous issues counsel deems appropriate.




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