IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-41272

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE FERNANDO POLANCO-OZORTO, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before KING, JOLLY, and COSTA, Circuit Judges.

PER CURIAM:

The Federal Public Defender appointed to represent DefendantAppellant Jose Fernando Polanco-Ozorto has moved for leave to withdraw and 

has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), 

and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). This case presents a 

narrow issue of first impression: where a criminal defendant who has pleaded 

guilty signs a statement indicating that he wishes to appeal only his sentence, 

and where the defendant’s appellate counsel files an Anders brief addressing 

only issues related to sentencing, may the defendant raise issues related to his 

guilty plea and conviction in response to the Anders brief? For the reasons 

United States Court of Appeals

Fifth Circuit

FILED

December 3, 2014

Lyle W. Cayce

Clerk

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No. 13-41272

below, we hold that the defendant may not, and that under such circumstances, 

we will consider only the issues addressed in the Anders brief.

Polanco-Ozorto pleaded guilty to being an alien unlawfully found in the 

United States after deportation. The district court sentenced him to a term of 

imprisonment of 72 months, within the Guidelines range of 70 to 87 months. 

Following his sentencing and prior to filing a notice of appeal, Polanco-Ozorto 

signed a document titled “DECISION REGARDING MY APPEAL,”1 indicating 

that, after discussing his appeal rights with his attorney, he wished to appeal 

his sentence only. Consequently, Polanco-Ozorto’s counsel never ordered a 

transcript of the rearraignment, and counsel filed an Anders brief 

pretermitting discussion of Polanco-Ozorto’s guilty plea proceedings and his 

conviction. The brief addresses only issues related to Polanco-Ozorto’s 

sentencing. In his pro se response to the Anders brief, Polanco-Ozorto contends 

that his counsel’s Anders brief is insufficient because it “does not address 

whether there are any nonfrivolous issues related to [his] guilty plea.” 

Although Polanco-Ozorto concedes that he signed the document indicating that 

he did not wish to appeal his conviction, he now believes that it is “in [his] best 

interest to challenge the validity of the guilty plea.” He argues that his 

appellate counsel, who did not represent him in the proceedings below,2 should 

have consulted with him “on whether he still chooses not to challenge his guilty 

plea”—rather than relying on the signed document alone.

In United States v. Garcia, 483 F.3d 289, 289 (5th Cir. 2007), this court 

held that counsel need not “file a transcript and brief the issues surrounding 

[a defendant’s guilty] plea” in an Anders brief where “the record reflects that 

the defendant has chosen not to challenge the plea.” This rule applies where 

1 The document is attached to the Anders brief filed by counsel.

2 Polanco-Ozorto was represented by a different Federal Public Defender below.

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the court can “determine from the record that the decision was the defendant’s 

own”—e.g., where “a defendant’s response to counsel’s Anders brief . . . rais[es] 

issues unrelated to the plea without questioning any plea related issue,” or

where there is “a written statement by the defendant that after receiving the 

advice of counsel he does not wish to challenge his guilty plea.” Id. at 291. 

Garcia does not directly address the situation here, where a defendant has 

signed a written statement indicating that he does not wish to challenge his 

plea, but later raises issues related to his plea in response to his counsel’s 

Anders brief. Today we hold that where a defendant provides sufficient 

indication (i.e., consistent with Garcia) that he intends to challenge only his 

sentence, the defendant may not revoke that decision after counsel has filed an 

Anders brief pretermitting any discussion of a defendant’s guilty plea.3

First, there is no dispute that Polanco-Ozorto filed a written statement 

indicating that he did not wish to challenge his plea—which, under Garcia, 

permits counsel to pretermit discussion of that plea in an Anders brief. Id.4 

Moreover, the rule we adopt today follows from general waiver principles. For 

example, we have held that a criminal defendant’s motion to proceed pro se on 

appeal will be denied if it is filed after the defendant’s counsel has filed an 

Anders brief, as such a request is invoked “too late.” United States v. Wagner, 

3 In an unpublished case, we addressed a scenario in which the defendant filed a 

response to an Anders brief arguing that counsel “has rendered ineffective assistance on 

appeal by failing to order a rearraignment transcript and assess whether the district court 

properly admonished him about certain aspects of his plea.” United States v. Flores, --- F. 

App’x ---, No. 13-40960, 2014 WL 4923087, at *1 (5th Cir. Oct. 2, 2014) (unpublished). We 

held that, “[i]n light of [the defendant]’s declaration evincing his intent to appeal only his 

sentence, [counsel]’s omissions in this regard are not objectively unreasonable.” Id. There, 

however, because we had access to the rearraignment transcript, we further determined that 

the defendant could not show any prejudice even “assuming deficient performance,” as the 

transcript made clear that there were no nonfrivolous issues related to the guilty plea. Id.

4 Although a defendant’s response to an Anders brief that is silent as to plea issues 

also justifies such pretermission, see Garcia, 483 F.3d at 289, that does not mean that a 

response that raises plea issues renders ineffective a defendant’s prior written waiver.

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158 F.3d 901, 902–03 (5th Cir. 1998). Furthermore, if a defendant such as

Polanco-Ozorto can later broaden the scope of his appeal in contradiction of his 

prior expressed intent, this could create significant administrative burdens on 

the courts and on appellate counsel. Such a rule would create the possibility 

of two rounds of Anders briefing—one addressing the issues the defendant 

initially indicates he wants to challenge, and another addressing any 

additional issues raised in response to the first Anders brief. This additional 

round of briefing may also require counsel to order transcripts related to these 

new issues (as here, a rearraignment transcript). In Wagner, we were driven 

by such administrative concerns, noting that “[m]uch time, preparation, and 

careful consideration goes into the filing of an Anders brief.” Id. at 902. We 

reasoned that, “[t]o allow criminal defendants to file a request to proceed pro 

se on appeal only after an Anders brief has been filed would open the door to 

abuse of this valuable sixth amendment right by allowing it to be used to 

obstruct the orderly procedure in the courts or to interfere with the fair 

administration of justice.” Id. (internal citations and quotation marks 

omitted). Similar considerations apply here. Adopting a contrary rule may 

also undermine the effect of our holding in Garcia, as appellate counsel would 

be unlikely to pretermit discussion even of issues the defendant previously 

indicated he did not desire to challenge—since the defendant could later 

change his mind.

Accordingly, we will not address the issues raised in Polanco-Ozorto’s 

response related to his plea and conviction. We have reviewed counsel’s brief 

and the relevant portions of the record, as well as Polanco-Ozorto’s response to 

the extent it addresses sentencing issues. We concur with counsel’s 

assessment that the appeal presents no nonfrivolous issues for appellate 

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

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counsel is excused from further responsibilities herein, and the APPEAL IS 

DISMISSSED. See 5TH CIR. R. 42.2.

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