United States of America v. Juan Olan-Navarro

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0412P (6th Cir.)
File Name: 03a0412p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN OLAN-NAVARRO,
Defendant-Appellant.
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No. 01-5309
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 00-20139—Bernice B. Donald, District Judge.
Argued: September 17, 2003
Decided and Filed: November 21, 2003
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Chad A. Readler, JONES DAY, Columbus,
Ohio, for Appellant. Joseph C. Wyderko, UNITED STATES
DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,
APPELLATE SECTION, Washington, D.C., for Appellee.
ON BRIEF: Chad A. Readler, JONES DAY, Columbus,
Ohio, for Appellant. Joseph C. Wyderko, UNITED STATES
2 United States v. Olan-Navarro No. 01-5309
DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,
APPELLATE SECTION, Washington, D.C., Tracy L. Berry,
ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee.
ROGERS, J., delivered the opinion of the court, in which
SUHRHEINRICH, J., joined. COLE, J. (p. 6), delivered a
separate concurring opinion.
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OPINION
_________________
ROGERS, Circuit Judge. On November 27, 2000, Juan
Olan-Navarro pleaded guilty to illegally reentering the United
States after having been deported in violation of 8 U.S.C.
§ 1326. The district court sentenced Olan-Navarro to
incarceration for fifty-seven months and two years of
supervised release, and imposed a special assessment of $100.
The Assistant Federal Public Defender who had been
appointed to represent Olan-Navarro in the district court filed
a timely notice of appeal and subsequently, in accordance
with Anders v. California, 386 U.S. 738 (1967), filed a
motion to withdraw and a brief explaining his conclusion that
there were no non-frivolous issues that Olan-Navarro could
assert on appeal. This court ordered that Olan-Navarro be
appointed new counsel and directed counsel to brief the
question “Should a criminal defendant be represented on
appeal by the same counsel who represented the defendant at
his guilty plea hearing or trial when that counsel proposes to
file an Anders brief on behalf of the defendant?” Newly
appointed counsel for Olan-Navarro has also briefed two
other issues: (1) “Does trial counsel’s service of an Anders
brief on the Government undermine the adversarial system or
violate the criminal defendant’s Sixth Amendment rights?”;
and (2) “Does Olan-Navarro’s fifty-seven month sentence
violate the Eighth Amendment’s prohibition against cruel and
unusual punishment?” We affirm without reaching the

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No. 01-5309 United States v. Olan-Navarro 3
question of whether to impose new requirements on the
court’s Anders procedures.
Olan-Navarro advances two arguments in support of his
contention that the court should appoint new appellate
counsel whenever court-appointed trial counsel files or
proposes to file an Anders brief. First, Olan-Navarro contends
that the appointment of new counsel in such circumstances is
necessary to ensure that criminal defendants receive a
constitutionally-acceptable level of advocacy and
representation under the Sixth Amendment of the
Constitution. Second, Olan-Navarro contends that, because
of its practical benefits, the court should establish such a rule
pursuant to its supervisory powers.
The court finds it unnecessary to reach the question of
whether the court is constitutionally required to appoint new
counsel where a criminal defendant’s trial counsel files or
proposes to file an Anders brief, as Olan-Navarro has, in fact,
been appointed new appellate counsel, rendering the question
moot. See, e.g. McPherson v. Mich. High Sch. Athletic Ass'n,
Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (“The test for
mootness is whether the relief sought would, if granted, make
a difference to the legal interests of the parties. . . .” (quoting
Crane v. Ind. Athletic Ass’n, 975 975 F.2d 1315, 1318 (7th
Cir. 1992))). Newly appointed counsel in the case argues
that it would be wise to require the appointment of new
appellate counsel whenever trial counsel proposes to file an
Anders brief. If so, such a rule should be proposed pursuant
to our court rulemaking procedures, where considerations pro
and con can best be heard and weighed, rather than in an
appeal in which new counsel has already been appointed.
Similarly, the court declines to consider whether trial
counsel’s service of an Anders brief on the government
violates a defendant’s Sixth Amendment rights, as that
question is also moot in the instant case. Even assuming that
such service does violate a defendant’s Sixth Amendment
4 United States v. Olan-Navarro No. 01-5309
1W e note, however, that two circuits expressly require such service.
Third Cir. Local App. R. 109.2(a) and Eleventh Cir. R. 27-1(a)(8).
W hile the rules of the D.C. C ircuit may preclud e such service, Suggs v.
United States, 391 F.2d 971 , 974 -75 & n.5 (D .C. Circuit 1968), counsel
points to no authority holding that such service is constitutionally
precluded.
2This Court generally reviews a constitutional challenge to a criminal
defendant’s sentence de novo. United States v. Tarwater, 308 F.3d 494,
517 (6th Cir. 2002). The government contends that Olan-Navarro failed
to raise an Eighth Amendment challenge to his sentence in the district
court, and, therefore, his should be reviewed under the “plain error”
standard. See, e.g., Johnson v. United States, 520 U.S. 461, 466-67
(1997) (observing that appellate courts can correct errors not raised at trial
if error is plain and affects substantial rights). Olan-Navarro concedes
that his counsel did not make an explicit Eighth Amendment challenge,
but argues that the argum ents ma de to the district court were sufficient to
preserve the erro r. It unnecessary to resolve the question of whether
Olan-Navarro in fact raised an Eighth Amendment claim at the time of
sentencing, as his claim fails even if he did.
rights, Olan-Navarro has already received the relief he
requested to redress the alleged violation — new counsel.1
Finally, there is no merit to Olan-Navarro’s substantive
claim that his fifty-seven month sentence is so
disproportionate and excessive that it violates the Eighth
Amendment’s prohibition against cruel and unusual
punishment.2 “The Eighth Amendment, which forbids cruel
and unusual punishments, contains a ‘narrow proportionality
principle’ that ‘applies to noncapital sentences.’” Ewing v.
California, 123 S.Ct. 1179, 1185 (2003) (plurality opinion)
(quoting Harmelin v. Michigan, 501 U.S. 957, 996-997
(1991) (Kennedy, J., concurring in part and concurring in
judgment)). The Eighth Amendment, however, does not
mandate strict proportionality between crime and sentence;
instead, at most, only sentences that are “grossly
disproportionate” to the crime are prohibited. Harmelin, 501
U.S. at 1001.

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No. 01-5309 United States v. Olan-Navarro 5
3Olan-Navarro had twice before been depo rted after entering the
United States without authorization. Prior to the first deportation, he was
twice convicted of burglary of a hab itation in Texas.
4Olan-Navarro ’s total offense level was twenty-one, calculated from
a base offense level of eight, with a three-point reduction for acceptance
of responsibility and a sixteen-level increase for being deported after a
conviction for an aggravated felon y. His criminal histo ry placed him in
category IV.
Olan-Navarro was indicted on one count of violating
8 U.S.C. § 1326(a) and (b) for reentering the United States
after being deported subsequent to the commission of an
aggravated felony,3 and pleaded guilty. Under 8 U.S.C.
§ 1326, Olan-Navarro faced a maximum term of twenty years
of imprisonment. 8 U.S.C. § 1236(b)(2). Under the United
States Sentencing Guidelines, however, the guideline
imprisonment range was fifty-seven to seventy-one months.4
The district court sentenced Olan-Navarro to fifty-seven
months, the minimum guideline sentence, as well as two
years of supervised release, with the special condition that
Olan-Navarro be immediately deported at the termination of
his sentence. We simply cannot say that a sentence of fifty-
seven months is grossly disproportionate to the crime of re-
entering the United States after being deported subsequent to
the commission of an aggravated felony.
The judgment of the district court is AFFIRMED.
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CONCURRENCE
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R. GUY COLE, JR., Circuit Judge, concurring. I
respectfully concur in the majority opinion; however, I write
separately to address the majority’s conclusion that the merits
of rules governing the filing of an Anders brief are better left
to this court’s rulemaking process.
Because, as the majority acknowledges, the Sixth
Amendment issues surrounding the trial counsel’s filing of an
Anders brief are moot, the merits of those claims are beyond
the jurisdiction of this Article III court. Any further comment
pertaining to the constitutionality of current procedures
governing the filing of an Anders brief is, therefore,
nonbinding dictum. Cf. Alexander v. Sandoval, 532 U.S. 275,
282 (2001) (“[T]his Court is bound by holdings, not
language.”)
While I generally agree that new rules should be proposed
and adopted in accordance with our established procedures,
which include input from the legal bar, there are instances
where it would be appropriate for this Court to adopt a new
rule outside our established procedures. I would not foreclose
the opportunity for a party to propose a new rule in the
context of an appeal nor would I limit the ability of this Court
to announce a new rule, if the circumstances so warranted.

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