Unreported / Non-Citable
Background
Luis Alberto Olivarez-Hernandez appealed from a criminal case in the U.S. District Court for the Western District of Texas. His appointed appellate attorney moved for leave to withdraw and filed a brief under Anders v. California and United States v. Flores, representing that the appeal presented no nonfrivolous issue for review.
Olivarez-Hernandez did not file a response to counsel’s motion or Anders brief. The Fifth Circuit reviewed counsel’s submission and the relevant portions of the record identified in the brief.
The Court’s Holding
The Fifth Circuit agreed with appointed counsel’s assessment that the appeal presented no nonfrivolous issue for appellate review. The court therefore granted counsel’s motion for leave to withdraw and excused counsel from further responsibilities in the matter.
The court dismissed the appeal under Fifth Circuit Rule 42.2. The per curiam opinion was not designated for publication.
Key Takeaways
- An appointed attorney may seek withdrawal by filing an Anders brief when counsel concludes that a criminal appeal presents no nonfrivolous issue.
- The Fifth Circuit independently reviewed counsel’s brief and the relevant portions of the record before agreeing with counsel’s assessment.
- Because the court found no nonfrivolous appellate issue, it permitted counsel to withdraw and dismissed the appeal.
Why It Matters
The decision illustrates the Fifth Circuit’s procedure for resolving an Anders appeal: the court reviews the attorney’s submission and relevant record materials rather than dismissing solely because counsel considers the appeal frivolous.
For criminal appellate practitioners, the opinion also confirms that a finding of no nonfrivolous issue can result both in counsel’s withdrawal and dismissal under Fifth Circuit Rule 42.2.