Unreported / Non-Citable
Background
Michael Enrique Pena was prosecuted in the United States District Court for the Northern District of Texas (Case No. 3:21-CR-518-1). Following conviction or sentencing, Pena appealed, and the Federal Public Defender was appointed to represent him on appeal.
Appointed counsel, after reviewing the record, concluded that the appeal presented no nonfrivolous issues. Counsel accordingly moved for leave to withdraw and filed an Anders brief — a procedural mechanism established by the Supreme Court in Anders v. California, 386 U.S. 738 (1967), and applied in the Fifth Circuit through United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Pena did not file a pro se response to the Anders brief.
The Court’s Holding
A per curiam panel of Judges Clement, Southwick, and Oldham reviewed counsel’s brief and the relevant portions of the record. The court agreed with appointed counsel’s assessment that the appeal presented no nonfrivolous issue warranting appellate review.
The court granted counsel’s motion for leave to withdraw, excused counsel from further responsibilities in the matter, and dismissed the appeal pursuant to Fifth Circuit Rule 42.2. The opinion was designated as unpublished under Fifth Circuit Rule 47.5.
Key Takeaways
- When appointed appellate counsel concludes an appeal is wholly frivolous, counsel may satisfy constitutional obligations by filing an Anders brief and moving to withdraw, rather than pressing meritless arguments.
- The Fifth Circuit independently reviews the record after an Anders submission; if it concurs that no nonfrivolous issue exists, it dismisses the appeal and permits counsel to withdraw.
- A defendant’s failure to file a pro se response to an Anders brief does not prevent dismissal if the court’s own review confirms the absence of any arguable appellate issue.
Why It Matters
This disposition illustrates the routine but constitutionally significant Anders process, which balances a defendant’s Sixth Amendment right to counsel against counsel’s ethical obligation not to advance frivolous arguments. It serves as a reminder that appointed appellate counsel who find no arguable merit must follow a specific withdrawal procedure — not simply withdraw without explanation — ensuring judicial oversight of the frivolousness determination.
While the decision is unpublished and non-precedential, it reflects the Fifth Circuit’s consistent application of its Anders framework and underscores that defendants who receive an Anders brief have an opportunity — which Pena did not exercise — to identify any issues they believe warrant review before the court acts.