Unreported / Non-Citable
Background
Michael Bo Peacock appealed from a criminal case in the U.S. District Court for the Western District of Louisiana. His appointed attorney moved to withdraw and filed a brief under Anders v. California, asserting that the appeal presented no nonfrivolous issue for appellate review. Peacock did not file a response.
The district court had orally imposed a $50,000 assessment under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act, 18 U.S.C. § 2259A. The amended written judgment, however, characterized that payment as a fine and stated that no AVAA assessment had been imposed.
The Court’s Holding
After reviewing counsel’s brief and the relevant portions of the record identified in it, the Fifth Circuit agreed that the appeal presented no nonfrivolous issue. It granted counsel’s motion to withdraw, relieved counsel of further responsibility, and dismissed the appeal under Fifth Circuit Rule 42.2.
The court nevertheless determined that the amended judgment contained a clerical error because it did not accurately reflect the district court’s oral pronouncement. It remanded the case for the limited purpose of correcting the judgment to identify the $50,000 payment as an AVAA assessment rather than a fine.
Key Takeaways
- The Fifth Circuit’s independent Anders review found no nonfrivolous appellate issue.
- The court granted appointed counsel’s motion to withdraw and dismissed Peacock’s appeal.
- The case was remanded solely to correct the written judgment’s misclassification of the $50,000 AVAA assessment as a fine.
Why It Matters
The decision illustrates that dismissal after an Anders review does not prevent an appellate court from ordering correction of a clerical mistake in the judgment. It also reinforces that the written judgment must accurately reflect the sentence pronounced orally.