Unreported / Non-Citable
Background
Brandon Jermaine Francisco pleaded guilty to Count 1 of a superseding indictment in the Western District of Louisiana. He appealed from the resulting amended judgment.
Francisco’s appointed appellate counsel moved to withdraw and filed an Anders brief, representing that the appeal presented no nonfrivolous issue. Francisco did not respond. The Fifth Circuit reviewed counsel’s brief and the relevant portions of the record.
The Court’s Holding
In an unpublished per curiam opinion, the Fifth Circuit concluded that Francisco’s appeal presented no nonfrivolous issue for appellate review, regardless of whether his appeal waiver applied. The court granted counsel’s motion to withdraw, excused counsel from further responsibilities, and dismissed the appeal under Fifth Circuit Rule 42.2.
The court nevertheless identified two clerical errors in the amended judgment: it stated that counts had been dismissed on the Government’s motion without identifying them, and it incorrectly described Francisco’s conviction as arising from Count 1 of the “indictment” rather than Count 1 of the superseding indictment. The court remanded solely for the district court to correct those errors under Federal Rule of Criminal Procedure 36.
Key Takeaways
- An independent Anders review revealed no nonfrivolous basis for Francisco’s appeal.
- The Fifth Circuit dismissed the appeal and permitted appointed counsel to withdraw.
- The limited remand allows correction of clerical errors only and does not disturb the conviction or sentence.
Why It Matters
The decision illustrates that an appellate court conducting Anders review may dismiss an appeal as frivolous while still directing correction of inaccuracies in the written judgment. It also underscores the limited role of Rule 36: correcting clerical mistakes rather than changing the substance of a conviction or sentence.