United States v. 2010-07-12 | 09-10159 | USA V. ULICES GUIZAR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-10159
Plaintiff-Appellee, D.C. No.
v. 1:08-CR-00225-LJO
Eastern District of  ULICES MENDOZA GUIZAR, California,Defendant-Appellant. Fresno
ORDER

Filed July 12, 2010
Before: Arthur L. Alarcón, Edward Leavy, and
Susan P. Graber, Circuit Judges.
ORDER
Ulices Mendoza Guizar appeals from his guilty-plea con-
viction and 46-month sentence for manufacturing marijuana
plants, and aiding and abetting, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. Pursuant to
Anders v. California, 386 U.S. 738 (1967), Mendoza Guizar’s
counsel has filed a motion to withdraw and a brief stating
there are no grounds for relief. We deny without prejudice the
motion to withdraw and order additional briefing.
Counsel’s brief summarizes the district court proceedings,
recites the facts of the case, and requests that this court inde-
pendently review the record because counsel was unable to
identify any nonfrivolous issues for appeal. The brief does not
satisfy the requirements set forth in Anders.
If appointed counsel concludes, after a conscientious
review of the record, that an appeal is frivolous, Anders
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requires counsel to: (1) advise the court that there are no non-
frivolous issues on appeal; (2) file a motion requesting per-
mission to withdraw as counsel of record; and (3) file an
opening brief “referring to anything in the record that might
arguably support the appeal.” Id. at 744. The Anders brief
should present the strongest arguments in favor of the client
supported by citations to the record and applicable legal
authority. See Penson v. Ohio, 488 U.S. 75, 81 (1988); McCoy
v. Court of Appeals, 486 U.S. 429, 439 (1988); see also 9th
Cir. R. 4-1(c)(6).
Counsel did not comply with the third requirement. This
requirement is important because it affords the indigent defen-
dant “that advocacy which a nonindigent defendant is able to
obtain[,]” and it enables “the court to pursue all the more vig-
orously its own review because of the ready references not
only to the record, but also to the legal authorities as furnished
it by counsel.” Anders, 386 U.S. at 745. This “requirement
was designed to provide the appellate courts with a basis for
determining whether appointed counsel have fully performed
their duty to support their clients’ appeals to the best of their
ability.” See McCoy, 486 U.S. at 439.
The brief submitted by Mendoza Guizar’s counsel identi-
fies no potentially arguable issues. Accordingly, we deny
without prejudice the motion to withdraw and order further
briefing. If, after a conscientious review of the record, counsel
concludes the appeal is frivolous, he shall so advise the court,
file a motion to withdraw, and file an opening brief “referring
to anything in the record that might arguably support the
appeal.” Anders, 386 U.S. at 744. If counsel concludes that
the appeal is not frivolous, then Anders does not apply, and
the appeal will proceed on counsel’s arguments.
Counsel is directed to serve and file a supplemental brief
within 45 days of the date of this order. Mendoza Guizar may
file a pro se supplemental brief raising any issues by October
7, 2010. Appellee shall file the answering brief by November
10276 UNITED STATES v. MENDOZA GUIZAR

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6, 2010, and the optional reply brief is due 14 days after ser-
vice of the answering brief.
10277 UNITED STATES v. MENDOZA GUIZAR

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