IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50317

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DAVID WAYNE GARLAND

Defendant- Appellant

Appeal from the United States District Court 

for the Western District of Texas, Waco Division

USDC No 6:08-CR-00149

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant David Wayne Garland appeals after his guilty plea conviction

for conspiracy to possess with intentto distribute crack cocaine in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 21 U.S.C. § 846. Garland’s counsel has

filed a motion to withdraw and a brief that relies on Anders v. California, 386

U.S. 738 (1967), stating that the appeal is without merit. Because the brief filed

in this case is wholly inadequate we deny the motion to withdraw and order

supplemental briefing.

United States Court of Appeals

Fifth Circuit

F I L E D

January 31, 2011

Lyle W. Cayce

Clerk
No. 09-50317

2

I. 

Garland pled guilty without a plea agreement to one count of conspiracy

to possess with intent to distribute crack cocaine. Garland was arrested after

he facilitated a drug buy made by investigators with the Waco Police

Department. Garland did not object to the pre-sentence report, although he did

suggest that his criminal history was over-represented and requested the court

to impose a sentence below the recommended guideline range of 151 to 188

months. The district court sentenced Garland to 151 months imprisonment and

Garland appeals. 

II. 

Garland’s counsel has filed a motion to withdraw and a brief based on

Anders. We write to clarify the standard for determining whether to accept a

motion from a criminal defendant’s lawyer to withdraw from representing the

defendant on appeal on the basis that there are no nonfrivolous grounds for

appeal under Anders, and in doing so to reiterate the minimum standards for an

adequate Anders brief. 

The directive in Anders is clear. Rather than simply filing a brief that is

little more than a no-merits letter, 

Counsel should, and can with honor and without conflict, be of more

assistance to his client and to the court. His role as advocate

requires that he support his client's appeal to the best of his ability.

Of course, if counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and

request permission to withdraw. That request must, however, be

accompanied by a brief referring to anything in the record that

might arguably support the appeal. 

Anders v. California, 386 U.S. 738, 744 (1967). More than thirty years ago, we

directed counsel filing an Anders brief that “Anders requires counsel to isolate

possibly important issues and to furnish the court with references to the record
No. 09-50317

3

and legal authorities to aid it in its appellate function.” United States v.

Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976). 

The Fifth Circuit’s website provides a detailed checklist and outline for

Anders briefs for guilty pleas and for bench or jury trials. See

http://www.ca5.uscourts.gov. The guidelines and checklist are under the

“Attorney Information Section.” This checklist is designed to assist counsel in

preparing a brief that will satisfy the standards of Anders in this circuit. 

Counsel obviously has broad discretion in the preparation of his brief. For

example, he can cover the material set forth in the checklist in narrative form,

or cut and paste the outline from the checklist and answer the questions called

for in it. No particular form of brief is required. The point is that counsel should

demonstrate that he has considered the issues set forth in the checklist to the

extent they apply to her case. This will assist our review of the brief to

determine whether it is adequate. 

Barring unusual circumstances in the proceedings, a brief submitted by

an attorney considering the issues set forth in the checklist and addressing the

areas of inquiry appropriate to his case will be facially adequate, meaning that

it meets both the requirement placed on counsel to “support his client’s appeal

to the best of his ability,” Anders, 386 U.S. at 744, and “to act with candor [to the

court] in presenting claims for judicial resolution,” McCoy v. Court of Appeals,

Dist. 1, 486 U.S. 429, 440 (1988). As we decided in a companion Anders case also

issued today, United States v. Flores, No. 09-41281, if counsel submits a brief

meeting this standard, we will no longer independently scour the record looking

for nonfrivolous issues. 

All counsel should utilize the checklistto ensure that criminal appeals are

adequately defended, and to conserve the resources of counsel and the court by

avoiding orders like the one we must issue in this case, requiring counsel to redo

the appellate brief. In addition, to fully comply with Anders, counsel must
No. 09-50317

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provide a copy of his brief to the defendant and the brief should include in the

Certificate of Service a statementthatthis requirement has been complied with.

Anders, 386 U.S. at 744. 

The brief in this case fails to satisfy these standards. The brief is entirely

conclusory and contains no meaningful discussion of the district court

proceedings or any potential issues for appeal. If counsel had followed the

Anders Case Guidelines as a checklist for preparing his brief, it would have led

him to address several points of potential concern. 

Because the defendant pled guilty, the checklist would have guided

counsel to review the plea colloquy and consider whether the dictates of Rule 11

were followed. The Anders Case Guidelines would also have led counsel to

address in further detail the sentencing of the defendant. The brief in this case

states that the defendant suggested to the court that his criminal history was

over-represented, given the nature of his prior convictions, but provides no facts

about those prior convictions or any assessment of the validity of this challenge

or citation to relevant case law. Counsel also failed to address the sentencing

proceedings and their compliance with Rule 32. The brief contains only a twosentence statementthatthe guideline range was calculated correctly, there were

no objections, and appellant was sentenced at the bottom of the guideline range,

leaving nothing to review. 

The record also reflects that Garland has exercised his option to file a brief

after receiving a copy of the brief filed by appointed counsel. In that brief,

Garland raises issues relating to his characterization as a career offender and

the associated question whether he was adequately and fully advised of his

rights before entering a guilty plea. In addition he challenges the imposition of

a fine with inadequate factual findings as to his financial resources. Without

expressing any opinion as to the merits of these issues, we note that they are
No. 09-50317

1 We have incorporated a number of changes in the opinion suggested by other judges

on the court and, with those changes, all active judges have assented.

5

possible grounds for inquiry when counsel makes another attempt to comply

with Anders. 

III. 

Accordingly, we ORDER counsel for Garland to file within 30 days a

supplemental brief that comports with Anders following the guidelines set forth

above or, in the alternative, a brief on the merits addressing any nonfrivolous

issues that counsel deems appropriate. If counsel files a supplemental Anders

brief, he should demonstrate that he has addressed the issues listed on the

Anders checklist found on this court’s website at http://www.ca5.uscourts.gov

insofar as it applies to his case, to assist the court in its review. 

The motion to withdraw is CARRIED with this case. Counsel should move

to withdraw this motion if a merits brief is filed.1