IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40205

UNITES STATES OF AMERICA,

Plaintiff - Appellee

v.

FRANCISCO MORENO-TORRES,

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before KING, GRAVES, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Francisco Moreno-Torres pleaded guilty to possession of marijuana with 

intent to distribute and was sentenced to a prison term of 76 months. The 

attorney appointed to represent Moreno-Torres moved on appeal for leave to 

withdraw and filed a brief and a supplemental brief in accordance with Anders 

v. California, 386 U.S. 738 (1967). Before reaching the merits of counsel’s 

motion, we will consider whether Moreno-Torres received adequate notice of 

that motion and of his right to respond. 

Both of defense counsel’s briefs included a certificate of service with the 

following statement: “[A] hard copy will be served . . . upon Francisco MorenoTorres.” However, the record reflects that Moreno-Torres does not speak or

understand English. Counsel did not indicate whether he conveyed to MorenoUnited States Court of Appeals

Fifth Circuit

FILED

September 30, 2014

Lyle W. Cayce

Clerk

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No. 13-40205

Torres, in a language Moreno-Torres understands, either the substance of the

Anders brief or his right under Anders to respond to the brief. See Anders, 386 

U.S. at 744.

The court invited Deborah Pearce, former president of the Fifth Circuit 

Bar Association, to submit an amicus brief regarding what the court should do 

under these circumstances. Consistent with caselaw and court rules elsewhere, 

Pearce recommended, inter alia, that the court direct counsel to file an 

amended certificate of service indicating that he communicated to MorenoTorres, in a language Moreno-Torres understands, both the substance of the

Anders brief and his rights pursuant to Anders, including the right to file a pro 

se response to the Anders brief. 

The record on appeal then reflects that counsel filed an affidavit stating 

that: (1) he had communicated to Moreno-Torres by telephone, through an

interpreter, both the substance of his Anders brief and Moreno-Torres’s rights 

under Anders; (2) he had advised Moreno-Torres that Moreno-Torres had a

right to retain other counsel or act pro se, and that the filing of the Anders brief 

would likely result in the dismissal of the appeal and the affirmance of MorenoTorres’s conviction; and (3) he had complied with all obligations that the 

Second Circuit imposes on lawyers who file Anders briefs. See United States v. 

Leyba, 379 F.3d 53, 55-56 (2d Cir. 2004). Counsel also submitted an affidavit

by an interpreter, who swore that she communicated in Spanish to MorenoTorres the advice that counsel discussed in his affidavit. 

We commend these supplemental clarifications confirming that MorenoTorres received due process. The Supreme Court has held that “[a]n 

elementary and fundamental requirement of due process in any proceeding 

which is to be accorded finality is notice reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of the action and 

afford them an opportunity to present their objections.” Mullane v. Cent. 

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Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Applying Mullane, the 

Second Circuit has held that due process requires a lawyer who knows his 

client does not speak English to “make reasonable efforts” to convey the 

following information about his Anders brief to his client in a language that 

the client understands: (1) the substance of the brief; (2) the client’s right to

oppose it or seek new counsel; and (3) the likelihood that the brief could result 

in dismissal of the appeal. Leyba, 379 F.3d at 55-56. Specifically, and applying 

Mullane, the Second Circuit held: 

[W]here counsel moves to withdraw under Anders, due process 

requires that a defendant whom counsel knows does not speak 

English is entitled to more than a written statement in English of 

his rights. At a minimum, counsel should make reasonable efforts 

to contact the defendant in person or by telephone, with the aid of 

an interpreter if necessary, to explain to the defendant the 

substance of counsel’s Anders brief, the defendant’s right to oppose 

it or seek new counsel, and the likelihood that the brief could result 

in dismissal of the appeal. Of course, written notice of the 

foregoing, in a language understood by the client, would also 

suffice.

Id.1 Because counsel communicated to Moreno-Torres, in a language MorenoTorres understands, the substance of the Anders brief and Moreno-Torres’s

rights under Anders, this case no longer implicates due process concerns. 

In light of the foregoing, we have reviewed counsel’s briefs and the 

relevant portions of the record reflected therein. We concur with counsel’s 

assessment that the appeal presents no nonfrivolous issue for appellate review. 

Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is 

1 See also United States v. Barocio-Mendez, 547 F. App’x 910, 912 n.2 (10th Cir. 2013) 

(commending counsel for providing the defendant with a written translation of the substance 

of the Anders brief); U.S. Court of Appeals for the Fourth Circuit, Certificate of Service of 

Anders Brief on Defendant, http://www.ca4.uscourts.gov/docs/pdfs/certificate-of-service-ofanders-brief.pdf (requiring a lawyer whose client had an interpreter in the district court to 

check a box stating that the client received translated information about the substance of the 

Anders brief and his right to file a pro se brief).

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excused from further responsibilities herein, and the APPEAL IS DISMISSED. 

See 5TH CIR. R. 42.2.

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