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In re A ndres M . A randa



### U N IT E D S T A T E S C O U RTO FA P P E A L S F O R T H E S E C O N D C IR C U IT August Term, 2014 (Decided: May 15, 2015; Amended: May 22, 2015) 1

Docket No. 14-90027

______________________________________________________ In re Andre s M. Aranda,

Attorney.

______________________________________________________ Before : C A B R A N E S, S A C K, and W E S L E Y , Circuit Judges

.

_____________________ 1 Andres M. Aranda, a member of this C ourt’s bar, is publicly 2 repr imanded and suspende d from practice befor e this Court for eighteen 3 months, based onthe misconduct described b elow. 4

_____________________ 5 For Andre s M. Aranda: Andres M. Aranda, pro se, 6 Bronx, N ew York

We amend this opinion as a result of rece nt developments in Patrici o 1 Sanche z’s criminalprocee dings, discussed in section II(A). The deadlines found in section VI are to be calculated using the original issuance date of this opinion, May 15, 2015.1 PER CURIAM : 2 Andres M. Aranda, who was admitted to the New York State bar in 3 1979 and to this Court’s bar in 2012, was order ed to show cause wh y 4 discipl inary or other corre ctive measures sho uld not be imposed on him, 5 based p rimaril y on his numerous defaults in sever al appeals in thi s Cour t. 6 For the r easons stated below, we publicly reprimand Aranda and suspe nd 7 him from practice before this C ourt for eighteenmonths, both for his 8 misconduct in those appe als and for his failure to proper ly respond to our 9 order to show cause. 10 I. Defaults in This Court 11 Aranda’s de faults are descr ibed in detailin the order to show cause, 12 which wil l be reissue d this date as a public decisi on. That order required 13 Aranda to provide, inter alia , an explanation for all of the describe d conduct. 14 We find his resp onse inadequate for a number of reas ons. 15 A. United States v. Thompson (Manigault) , No. 11-1761 (L) 16 Aranda re pres ented Anthony Manigault in his direct appeal from a 17 criminaljudgment sentencing him t o, inter alia , 120 months’ im prisonment. 18 Aranda defaulted on a number of occasions in the appeal: he failed to pay the

21 filing fee or file num erous r equired documents, inclu ding his brief, by the 2 deadlines mandated by this Court’s r ules and order s. The appe al was 3 eventually di smissed base d on Aranda’s defaults. Luckily for Aranda’s client, 4 however, the appeal was later re instated and, upon the Government’s motion, 5 the case was remanded to the district court and the client was res entence d to 6 66 months’ im prisonment. 7 In his respons e to our orde r to show cause , Aranda acknowledged on ly 8 that he had failed to ti mely pay the fil ing fee and failed to ti mely fi le a court 9 form. He attributed those de faults to hi s “inexper ience and unfamili arity wi th 10 the filing proce dures of this C ourt.” Respons e ¶ 9. He also stated that his 11 conduct did not prejudice his cli ent. Id. ¶ 10. 12 Aranda’s e xplanation for his conduct in Thompson is deficient for 13 sever al reasons. Firs t, he did not mention the numerous othe r defaults noted 14 in our order to show cause, which ex tended far beyond the filing fee and a 15 single form. Second, Ar anda’s prof fere d reaso n for the de faults, his 16 unfamil iarity w ith thi s Cour t’s “fil ing procedure s,” does n ot explain why he 17 failed to com ply wi th Court orde rs that identified his default s and instructed 18 him t o cure the de faults by specified deadlines. Nor does his proffer ed re ason 31 explain why mul tipl e telephone calls from the Court were required befor e he 2 cured some of h is defaults. 3 Third, Aranda’s discussion of the pr ejudice faced by his client in 4 Thompson focused solely on the en d result – the re sentenc ing to a shorter ter m 5 of imprisonment – wi thout menti oning Aranda’s own r espons ibil ity for the 6 dismi ssal of the appeal, or the risk to his cli ent that his defaults coul d have 7 foreclosed the sentenc e re duction. See In re DeMell , 589 F.3d 569, 573 (2d Cir. 8 2009) (“[A] reas onable attorney with thirty years ex perience . . . clearly woul d 9 know that defaulting on a client’s case leaves ope n the poss ibil ity of severe 10 prejudice . . . .”). 11 We also note that, even if Aranda’s defaults in Thompson (and in the 12 cases discuss ed below) caused littl e or no p rejudice to his cli ents, he 13 nonetheles s “caused pr ejudice of a different type: he was ted the time of 14 opposing counsel, Cour t employees, and judges; delayed the pr ocessing of 15 other liti gants’ cases; an d caused unne cessar y expe nse to the pub li c.” In re 16 Gordon , 780 F.3d 156, 159 (2d Cir. 2015). 17 B. United States v. Vallejo , No. 13-468 18 Aranda re pres ented Gaspar Vallejo in his di rect appe al from a criminal 41 judgment sentencing him t o, inter alia , forty-six months’ imprisonment. As 2 noted in our orde r to show cause , Aranda’s de fault nearly caused the 3 dismi ssal of the appeal, which was avoided only through seve ral telephone 4 calls from thi s Cour t regarding his default. Aranda’s r espons e to the orde r to 5 show cause did not mention the default, the threatene d dismi ssal, or the 6 telephone calls, but instead discussed only his reason s for later moving to 7 withdraw from the case. SeeResponse ¶ 11. 8 Aranda’s r espons e also did not address the risk of ser ious prejudice to 9 his cli ent posed b y his default – specifical ly, the substantial ri sk that the 10 appeal could have beendismi ssed. See Gordon , 780 F.3d at 159 (“Despite the 11 Court’s forbear ance in those situations, dismi ssal of the appeals bas ed on 12 Gordon’s defaults was a distinct possibil ity (parti cularly where ther e had be en 13 a pattern of defaults) and, ther efore , he ex posed his clients to potentially 14 serious pr ejudice.”). 15 C. United States v. Gabriel, Nos. 13-1625 and 13-1655 16 Aranda re pres ented Leon ardo Gabriel in two appeals from a criminal 17 judgment sentencing Gabriel to, inter alia , 240 months’ im prisonment. Both 18 appeals were dismi ssed b ased on Ar anda’s defaults. Although both were 51 later reinstated, Arand a defaulted on a number of othe r occasions and 2 incorrectly informed the Cour t that di strict court transcripts wer e not yet 3 avail able. In his respon se to our or der to show caus e, Aranda s tated that he 4 had never intended to neglect Gabriel’s appeals and that his secre tary had 5 beentold thatthe district court transcripts were not ready eac h tim e she 6 inqu ired. SeeResponse ¶¶ 20-21. He did not other wise discuss the many 7 defaults noted in our order or the dismissal of the two appeals. 8 D. United States v. Guerrero (Delgado) , No. 11-4489 9 Aranda re pres ented He ctor De lgado i n an appeal from a criminal 10 judgment sentencing Delgado to, inter alia , 128 months’ im prisonment. We 11 order ed Aranda to e xplain his default s in that appeal, although the defaults 12 were n ot indi vidual ly i dentified in our order to sho w cause. In his resp onse, 13 Aranda stated simply that “there is nothing i n the re cord to show that [his] 14 work in that matter was def icient or in vi olati on of any courts [ sic ] rules and 15 procedur es.” Resp onse ¶ 19. 16 To the contrary, the public docket for Guerrero clearly reflects that 17 Aranda defaulted on se veral occasions. Sp ecifical ly, the docket inclu des thre e 18 separ ate order s of this Court stating that Aranda had failed to fil e two 61 required forms and his br ief; two of those order s threaten ed dismissal of the 2 appeal if the defaults were not cure d. See Guerrero , No. 11-4489, docs. 3, 12, 13. 3 Other or ders n oted that Aranda had filed defective documents, see id. , docs. 4 24, 31, and that he had failed to cure one of the defective documents desp ite 5 having been given no tice, see id. , doc. 28. Each of the C ourt’s orde rs identified 6 the rules that had be en violated. Thus, contrary to Aranda’s c onclusory 7 asser tion, the record doe s ref lect that hi s per formance in Guerrero was 8 deficient and that he viol ated a number of the Court’s r ules. 9 E. United States v. Batista , No. 12-1621 10 Aranda re pres ented Marco Batista in his appeal from a criminal 11 judgment sentencing him t o, inter alia , 244 months’ im prisonment. The docket 12 for that appeal reflects the following: Aranda de faulted on several occasions, 13 including by failing to fil e a br ief; the Court informed him that the appeal 14 would be dismi ssed if the br ief was not tim ely fil ed; he filed a defective 15 moti on to be r elieved; he failed to cure that defective motion despite repeated 16 requests fr om the Court; and he was sua sponte relieved when it became 17 apparen t that he would not com ply wi th the Court’s instr uctions. Bati sta, 18 procee ding pro se, later informed the Cour t that he was having diffi culty 71 prepar ing his brief due to, inter alia , Aranda’s failure to provide re quested 2 documents. See Batista, No. 12-1621, doc. 51 at ¶¶ 3-4; doc. 63 at ¶ 5. The 3 appeal ulti mately w as dismissed, based onBatista’s failure to file his brief. Id. , 4 docs. 57, 59, 69. 5 In his respons e to our orde r to show cause , Aranda des cribed the 6 factual basis for Batista’s convicti on and various district court proceedings 7 that are irre levant to the prese nt matt er, stated that he h ad beenfired by 8 Batista’s fami ly, and summ arily asserted that Batista was not prejudiced. 9 Response ¶¶ 12-13. Aran da did not address any of the conduct describe d in 10 the pre ceding paragraph, or ex plain why Bati sta was not prejudiced by that 11 conduct. 12 F. United States v. Espinal, No. 12-737 13 Aranda re pres ented Guidri Espinalin his appeal from a criminal 14 judgment sentencing him t o, inter alia , 41 months’ im prisonment. Aranda 15 failed to fi le a required form, despite be ing reminded to do so by the C ourt, 16 and failed to fi le a brief, re sulting in the dismi ssal of the appeal. In his 17 resp onse to our or der to show caus e, Aranda s tated only that t he appe al “was 18 not pursued” b ecause Es pinal had been se ntenced to the lowest se ntence he 81 could have rece ived within the stipulat ed Se ntencing Gui delines range in his 2 plea agreement, and that Espinal “was not prejudiced since he rece ived a 3 guidelines se ntence.” Res ponse ¶ ¶ 14-15. 4 Aranda did not state whether Espinal had consented to the 5 abandonment of the app eal. However, e ven if Espinal did consent, “an 6 appellant’s counsel of recor d who determines that the appe al wi llnot procee d 7 for any r eason is re qui red to inform the C ourt of the situati on and see k to 8 either withdraw the appeal or withdraw as couns el.” In re Yan , 390 F. App’x 9 18, 21 (2d Cir. 2010). “[C ]ounsel may not end the re pres entation of a cli ent 10 without

taking affi rmative acti on, or pe rmit the termination of an appeal by 11 all owing it s dismissal for lack of prosecution.” In re Payne, 707 F.3d 195, 206 12 (2d Cir. 2013); see also Second C ircuit LocalRule 4.1(a)-(d) (setting forth 13 procedur es for attorney’s withdrawal from a criminal appeal). 2 14

If Espinal di d not consent to the ab andonment of the appe al, we 2 would conclu de that the loss of the appe al, regardless of its merit, caused him substantial prejudice for the re asons discusse d in section II (A) of this decision. 91 II. Misconduct in District Court 2 Our orde r to show cause also directed Aranda to ex plain hi s conduct in 3 two district

court cases, in which the pr esiding judges found his perfor mance 4 deficient in various respects. 5 As a pre li minary matter, we ob serve that attorney misconduct in a 6 district court i s subject to the disciplinary authority of the judges of that court. 7 This Court does n ot poli ce the be havior of attorneys in the district courts. 8 Nonethe less, an attorney’s conduct in distri ct court may be the subject 9 of proce edings in this Court in li mit ed circumstances – for example: (a) in an 10 appeal from a district court’s disci plinary order, see Second C ircuit LocalRule 11 46.3; (b) in a reciprocal disciplinary pr oceeding, in which this Court 12 determines whe ther to impose recipr ocal disci pline based on a district court’s 13 suspens ion or disbarment orde r, seeSecond C ircuit LocalRule 46.2(c); or (c) in 14 a discipl inary procee ding concerning misconduct in thi s Cour t, where district 15 court conduct is relevant to whether there is a patter n of misconduct or, more 16 gener all y, to whether the attorney “willbe unab le to conform [his] future 17 conduct [in this Court] to expected p rofes sional norms,” In re Jaffe, 585 F.3d

101 118, 121 (2d Cir. 2009). In the pres ent disciplinary pr oceeding, Aranda’s 3 2 district court conduct i s relevant b ecause, whe n viewed in the context of the 3 conduct describe d in our order to show cause, it supports the con clusions that 4 his mi sconduct in this Court is part of a wider pattern of misconduct, and that 5 he may be unab le to conform to expected p rofes sional norms in future appeals 6 in this Court. 7 A. United States v. Sanchez , No. 12-cr-131 (S.D.N.Y.) 8 Aranda re pres ented Patricio Sanchez in his criminalprose cution, whi ch 9 concluded with Sanchez pleading guil ty and being senten ced to, inter alia , 37 10 months’ im prisonment. In post-judgment proceedings, the district court 11 determined that Aranda had de prived Sanch ez of effe ctive assistance of 12 counsel by failing to pursue a direct appe al, contrary to Sanche z’s instructions. 13 See Sanchez v. United States , Nos. 12-cr -131, 13-cv-6827, 2014 WL 764341, at *2 14 (S.D.N .Y. Feb. 25, 2014). 15 The district court also denied Aranda’s motion to wi thdraw from the 16 appeal – explaining that the motion was not proper ly addresse d to that court –

There may be other instances where an attorney’s con duct in di strict 3 court is relevant to a discipl inary procee ding in thi s Cour t. The examples pres ented above are not intended as exclusive. 111 and stated that Aranda was r equired to proceed with the appeal until reli eved 2 by this Court. See id. The district court specified that, unti l thi s Cour t relieved 3 Aranda of his duties, those duties “include fil ing an appeal on Mr. Sanche z’s 4 behalf and submitting an Anders brief if Mr. Aranda b elieves the appeal is 5 frivolous.” Id. Des pite these directives, ther e is no indicati on Aranda has 4 6 attempted to proceed with the appeal. 7 In his respons e to our orde r to show cause , Aranda ass erted, inter alia, 8 that: Sanchez did not pay him for an appeal; Aranda could not proce ed with 9 an appeal due to a conflict of interes t; he had re quested that this Court relieve 10 him from repres enting Sanchez onappeal, but has not yet re ceived a ruling; 11 Sanche z was not prejudiced, be cause he was sentenc ed within the range set 12 forth in his plea agreement; and “this C ourt has ruled on his appe al.” 13 Response ¶¶ 17-18. Aran da’s asse rtions are b oth factually and legall y flawed. 14 First, an attorney re pres enting a criminal defendant who is instructed 15 by his client to fi le a notice of appeal must do so, even if the client wai ved the

See Anders v. California , 386 U.S. 738 (1967) (re qui ring, in an appeal 4 from a criminaljudgment, thata defens e attorney who b elieves that his client’s appeal woul d be fr ivol ous must, inter alia , move to be re li eved on that basis and br ief allarguably meritorious appellat e issues). 121 right to appeal in a pl ea agree ment. See Campusano v. United States , 442 F.3d 2 770, 771-72 (2d Cir. 2006). Aran da has neve r claimed that Sanchez did not 3 instruct himto fil e an appe al; i n fact, as discussed b elow, Aranda did attempt 4 to fil e a notice of appeal. 5 5 Second, af ter the de fendant’s notice of appe al i s filed, the defendant’s 6 attorney is required to proce ed with the appeal untilexplicitly relieved of the 7 repr esen tati on by this Court. See Second C ircuit LocalRule 4.1(a) (“When a 8 defendan t in a crim inal case seeks to appe al, defendant’s counse l, whether 9 retained or ap pointed, is respons ible for repr esen ting the defendant unless 10 relieved by this court.”); see also Payne, 707 F.3d at 206 (“[C]ounsel may not 11 end the r epre sentation of a client wi thout taking affirmati ve action.”). Thus, 12 an attorney who has not beenpaid for the appeal, or who b elieves that the 13 appeal would be frivolous, or who has a conflict of interest with his cl ient, 14 must nonetheless continue with the appeal untila proper moti on to withdraw

In the post-judgment proceedings noted ab ove, the Govern ment 5 informed the district court that Aranda had orally confirmed “that he fil ed [the] notice of appeal becaus e he was as ked to do so by S anchez.” Sanchez v. United States , No. 13-cv-6827 (S.D .N.Y.), Feb. 14, 2014 doc ket entry (EC F No. 7; Government letter). 131 has be en gran ted by this Court. 6 2 Third, there is no r ecord of Ar anda moving in this Court to withdraw as 3 counsel; in fact, unti l several days ago, ther e was no appe al i n this Court. The 4 reaso n is simpl e: Aranda filed a notice of appeal that was found defective by 5 the district court’s clerk’s office. See Sanchez, No. 12-cr-131 (S .D.N.Y.), D ec. 11- 6 12, 2012 docket entries (n otice of appeal, with docket notations that the fil ing 7 was defective). Ther e is no indicati on that Aranda attempted to cure that 8 defect and, as a r esult, the matter was n ot transfer red to this Cour t at that 9 tim e. In fact, over two years passed b efore a notice of appeal was prope rly 10 filed, and that noti ce was filed by Sanche z himself. See id. , May 11, 2015 7 11 docket entry (EC F No. 35). 12 The Febr uary 13, 2014 motion to w ithdraw that Aranda claim s he filed

Aranda’s as sertion that Sanche z had retained anothe r attorney in or 6 about April 2013 i s irrelevant, as the re is no sugges tion that Sanchez was repr esen ted by anyone other than Ar anda during the per iod for filing the notice of appeal or that any other attorne y sought to proceed with the appeal. In any event, as discusse d above, Ar anda remained re sponsible for the appeal untilexplicitly relieved. The district court judge stated that Aranda had fil ed a notice of appeal 7 but fail ed to there after file an appellate brief. See Sanchez , Nos. 12-cr -131, 13-cv-6827, 2014 WL 764341, at *2. However, because of Aranda’s de fective notice of appeal, there was no appeal in which to fil e an appe ll ate brief. 141 in this Court appears to have actuall y beenfiled in district court. A motion 2 matching t

hat description was filed in di strict court on Febr uary 14, 2014, see 3 id. , Feb. 14, 2014 docket e ntry (ECF N o. 31) , and, as noted ab ove, was den ied 4 by the district court as having been f il ed in the wrong cour t, see Sanchez , 2014 5 WL 764341, at *2. Although the district court made clear that the moti on 6 neede d to be filed in thi s Cour t, there is no indication that A randa eve r 7 investigated the status of the appeal. See In re DeMarco , 733 F.3d 457, 463 (2d 8 Cir. 2013) (“Although counsel of recor d need n ot constantly m onitor the 9 Court’s docke t, counsel cannot allow l engthy per iods of tim e to pass without 10 periodic review.”). 11 Aranda’s con clusory asser tion that this Court has r uled on Sanchez’s 12 appeal is baffling; the exhibit he cited in support of this assertion is merely a 13 copy of Sanche z’s plea agree ment. SeeResponse , exh. 4. 14 Finally, we reject Ar anda’s contention that, because Sanche z rece ived a 15 sentenc e consistent with his plea agreement, he was not prejudiced by 16 Aranda’s misconduct. Although the fullextent of pr ejudice suffered b y 17 Sanche z cannot be de termined without anal yzing the issues he will present in 18 his future appellate brief, his rec ent pro se notice of appeal reflects his wish to 151 challenge both his conviction and sentence. See Sanchez , No. 12-cr-131 2 (S.D.N .Y.), May 11, 2015 docket entry (EC F No. 35). Howeve r, be cause 3 Sanche z is no longer incarcer ated pursuant to the judgment under appe al, 4 there is a sub stantialrisk that his intended appeal of his sentence wil l be 5 found moot, in whole or par t, as a result of Aranda’s de lay. That loss of the 8 6 opportunity to appeal, by it self, constitutes signifi cant prejudice. 7 In the context of an attorne y who had failed to pursue an appeal from a 8 deportation order, we stated that 9 the dismissal of a case on default wi thout the cli ent’s conse nt, 10 even if the case appears to lack m erit, causes pr ejudice by

The web s ite for the Feder al Bureau of Prisons indicates that Sanchez 8 was release d from its custody i n Febr uary 2015; in a recen t letter to the district court, Sanche z stated that he had completed his criminalsentenc e and had beentransfer red to immi gration detention. See Sanchez , No. 12-cr-131 (S.D.N .Y.), Apr. 30, 2015 docket en try (ECF No. 34) at 2. As a r esult, it is questionable whether San chez is now able to effe ctively chal lenge his term of incarceration or his supe rvised re lease. See United States v. Blackburn , 461 F.3d 259, 262 (2d Cir. 2006) (holding that the defendant’s s entencing appeal was moot because he had completed his term of incarceration and “the pos sibili ty of the district court’s im posing a reduced te rm of supervise d release on remand [was] r emote and speculative”); see also United States v. Williams , 475 F.3d 468, 479 n. 6 (2d Cir. 2007) (stating that a sentencing appeal would be moot where the de fendant had be en re leased from prison an d deported befor e completion of his supervised re lease, and his chance of legall y returning to this country to serve the remainder of his supervised r elease was no more than “quixotic”). 161 depriving the client of review by a panel of Article II I judges. 2 Liti gants who face dep ortation, incarceration, or simply a 3 financialloss if they lose on appeal are likely to derive at least 4 some satisfaction, consolati on, or se nse of finality from knowing 5 that the loss on appeal res ulted from the reasone d decision of 6 three judges rather than from their attorneys’ de fault. 7 In re Fengling Liu , 664 F.3d 367, 373 (2d Cir. 2011). 8 However , the concep t of prejudice in the context of a criminal appeal i s 9 more fully developed in decisions di scussing the Sixth Amendment right to 10 effective assistance of co unsel. Those dec isions make clear that prejudice is 11 pres umed when a criminaldefendan t instructs his attorney to pursue a direct 12 appeal from the judgment of convicti on and the attorne y fail s to do so. See 13 Campusano , 442 F.3d at 772. Whil e that unders tanding of prejudice does not 14 bear directly on an attorney disciplinary pr oceeding, the r ational e for the 15 pres umpti on of prejudice i s relevant. The S upreme C ourt has des cribed the 16 prejudice that results from an attorney’s failu re to appe al as foll ows: 17 According to resp ondent, counse l’s deficient performance 18 deprived him of a notice of appeal and, hence , an appeal 19 altogether. Assuming those allegati ons are true, counse l’s 20 deficient performance has depr ived respon dent of more than a 21 fairjudici al proceeding; that deficiency deprived re sponden t of 22 the appellate procee ding alt ogether. In Cronic, Penson , and

171 Robbins ,[ ] we held that the complete denial of counsel during a 9 2 criticalstage of a judici al proceeding mandates a pre sumption of 3 prejudice becaus e “the adver sary pr ocess itself” has b een 4 rende red “pr esumptively u nreliable.” Cronic, [466 U.S.] at 659. 5 The evenmore ser ious denial of the entire judicial proceeding 6 itself, whi ch a defen dant wanted at the tim e and to which he had 7 a right, simi larly demands a presumption of prejudice. Put 8 simpl y, we cannot accord an y “‘pres umpti on of re li abili ty,’” 9 Robbins , [528 U.S.] at 286, to judi cial proceedings that never took 10 place. 11 Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000). 12 The prejudice cal culus i s not significantly altered by the fact that the 13 defendan t signed a plea agreement containing an appeal waiver. In that 14 scenar io, thi s Cour t has obse rved the f ollow ing: 15 [T]he pre sumption of prejudice in post-wai ver cas es “is not a 16 matter of formali stic compl iance with a technicalrule merely 17 postponing the inevitable denial of reli ef on the mer its. Rather, it 18 serve s to safeguard important interests with concre te and 19 potentially dispositi ve conse quences which can be guaranteed 20 only by the direct-appeal proce ss and the co ncomitantright to 21 counsel.” United States v. Garrett, 402 F.3d [1262,] 1265–66 [(10th 22 Cir. 2005)] (internal citati on, alteration and quot ation marks 23 omit ted). An Anders brief at least makes availabl e to the 24 defendan t the best pos sible arguments supporting his appeal or 25 the reas ons why counse l believes no such arguments e xist. See 26 Anders [ v. California ], 386 U.S. [738,] 745, 87 S.C t. 1396 [(1967)]. 27 Thus, if the defendant choos es to proce ed pro se, he or s he willdo

United States v. Cronic, 466 U.S. 648 (1984); Penson v. Ohio , 488 U.S. 75 9 (1988); Smith v. Robbins , 528 U.S. 259 (2000). 181 so with as much advi ce and ass istance as his or he r attorney can 2 ethicall y provide. When an Anders brief is filed and a court 3 reviews the ap peal to determine whether it raises non-frivolous 4 issues, the def endant is afforde d first an opportunity to appeal 5 with the benefit of counsel and then anopportunity to 6 demonstrate to the court the e xistence of non -frivolous issues 7 after counse l has withdrawn. These are not trivialopportunities. 8 Campusano , 442 F.3d at 776-77. 9 For the r easons discussed in Flores-Ortega , Campusano , and Fengling Liu , 10 we conclude that Sanchez s uffered substantial prejudice from the delay of his 11 appeal even if he r eceived a se ntence con sistent with hi s plea agree ment. 12 B. Morillo v. City of New York, No. 02-cv-8647 (S.D.N.Y.) 13 Aranda re pres ented Ramon Morill o in a civi l acti on against the City of 14 New York an d sever al of it s police officers. The district court dismi ssed the 15 action in a decision that criti cized Aranda’s pe rformance in several re spects. 16 See Morillo v. City of New York , No. 02-cv-8647, 2003 WL 22319609 (S.D .N.Y. 17 Oct. 10, 2003). Although our order to sh ow cause directed Ar anda to explain 18 his conduct in Morillo , he re sponded that he does not “fee l competent to 19 comment on that case” because his former par tner has posses sion of the 20 relevant files; he also suggested that the for mer partne r may have be en 21 resp onsible for the cas e since it was their firm’s practice to have that partner 191 “do all paper work and make most appearan ces in feder al court.” Response ¶ 2 16. 3 The docket for Morillo li sts Aranda as the sole counse l of record for the 4 plainti ff, and the Octobe r 2003 district court decision discussed him by name. 5 Aranda did not state whether he had made any attempt to access the 6 files for Morillo for purpo ses of r esponding to our or der, and h e did not 7 request this Court’s aid in obtaining them. An att orney r esponding to 8 discipl inary charges must m ake reas onable effor ts to review all relevant 9 recor ds and other evidence; if relevant evidence is not accessible, the attorney 10 must detai l his or her e fforts to obtain it and, if appropriate, request a 11 subpoen a or other help from this Court. See, e.g. , Second C ircuit LocalRule 12 46.2(b)(3)(F)(i) (permitting at torney in proce eding befor e this Court’s 13 Committee on Admissions and Grievances to re quest a subpoena fr om the 14 Court for, inter alia , “the production of relevant documents or other e vidence 15 in the posses sion of third parties”). 16 For pre sent purpo ses, ho wever, we wil l not requi re Ar anda to 17 supplement his respon se conce rning Morillo , because we do not fore see any 18 supplementation al tering the disposition of thi s matter. We re ach no 201 conclusions concern ing Aranda’s conduct in that case. 2 III. Prior Disciplinary History 3 Our orde r to show cause also required Aranda to provide a complete 4 descr ipti on of his disciplinary history, copies of all prior orde rs to show cause 5 why he should not be disciplined, copies of all of hi s res ponses to those 6 order s, and copies of all prior decisions imposing di sciplinary measure s. In 7 his respo nse, Ar anda discussed two instances whe n district court judg es 8 considere d the possibility of sanctioning him, and one N ew York State 9 discipl inary procee ding that resulted in a one-year susp ension. Howeve r, he 10 neglected to mention three admonitions im posed b y New York S tate 11 discipl inary authoriti es, and he failed to provide any of the required 12 documents aside from the 2006 decision imposing the suspension. 13 For pre sent purpo ses, we rely on the 2006 susp ension decision for a 14 descr ipti on of the thre e admoniti ons. See In re Aranda , 32 A.D.3d 58 (1st D ep’t 15 2006). In 1986, Aranda was admonished for making misrepres entations to a 16 court about his engagement in another matter and to the departmental 17 discipl inary commi ttee; in 1989, he was admonished for n eglecting a crim inal 18 matter; and, in 1993, he was admonished for failing to appear in court. See id.

211 at 62. 2 The 2006 suspe nsion order was base d on Aranda’s neglect of seve ral 3 civilcases, which r esulted in the loss of his cli ents’ claims, and his fai lure to 4 file retainer statements. See id. at 64-65. The one-year suspens ion was 5 imposed despite the miti gating evidence pres ented by Ar anda, which 6 included his testi mony that he had reor ganized his office by obtaining a new 7 computer system and had re duced his caseload by se venty-five perce nt. Id. at 8 62, 64. 9 IV. Failure to Properly Respond to Our Order to Show Cause 10 As discussed ab ove, Aranda h as failed to explain, or even mention, 11 much of the questionable conduct described in our orde r to show cause , 12 contrary to the e xplici t instructi ons in that order. We treat that fail ure as 13 Aranda’s admission that he did, in fact, engage in that conduct and that he 14 lacked any legitimat e exc use for it. SeeAmerican Bar Association (“ABA”), 15 Model Rules for Lawyer Disciplinary Enforcement, Rule 33(1) (1989, amended 16 2002) (“Failu re to answe r char ges filed shall constitute an admission of the 17 factual al legati ons.”); In re Christensen , 69 A.D.3d 201, 202 (2d D ep’t 2009) 18 (“[H]aving fail ed to answer the charge s of the pe tition, the resp ondent is in 221 default and the charges contained in the verified petiti on must be deemed 2 established.”); In re Anello , 228 A.D.2d 1, 2 (2d D ep’t 1996) (“Inasmuch as the 3 resp ondent has ch osen not to appe ar or an swer the se pr oceedings, the ch arges 4 must be deemed es tablished.”). 5 Aranda’s failure to prope rly respon d also constitut es both an 6 independen t basis for discipli nary action and an aggravating factor. See In re 7 Warburgh , 644 F.3d 173, 176 (2d Cir. 2011) (holding that att orney’s failu re to 8 resp ond to an order to show cause why he should not be disciplined, issued 9 by this Court’s C ommi ttee on Admissions and Grievances, may be tre ated as 10 both an indepen dent basis for discipl inary action and an aggravating factor); 11 see also ABA, Standards for Imposing Lawyer Sanctions § 9.22(e) (1986, amended 12 1992); In re Padilla , 67 N.Y.2d 440, 448 (1986) (finding that att orney’s 13 obstructionism in disciplinary pr oceeding “frustr ated the dili gent pursuit of 14 serious char ges against him, pl aced into questi on his fitness to rep rese nt 15 others, an d itself constituted conduct prejudicialto the admini stration of 16 justice”). 17 In recent disciplinary decisions, we have held that an attorney’s 18 obstruction of a disciplinary pr oceeding, by failing t o res pond to an orde r to 231 show cause or by providing false testimony, was a signi ficant aggravating 2 factor. See Warburgh , 644 F.3d at 176–77; Gordon , 780 F.3d at 159-60. The 3 obser vations we made concern ing those forms of obs truction apply as wellto 4 Aranda’s failure to fullyresp ond to the orde r to show cause in the prese nt 5 case. In Warburgh , where the orde r to show cause was issued by this Cour t’s 6 Committee on Admissions and Grievances, we stated the following: 7 An attorney’s de fault in disciplinary pr oceedings is a ser ious 8 bre ach of the attorney’s profes sional obli gations to the Court and 9 the public. In such a case, the attorney h as not only fail ed to 10 resp ond to a Court-san ctioned order, but has done s o after the 11 Court already has found good cause to question the attorney’s 12 very competenc e to continue practicing in this Court. 13 Furthermore , such defaults often ser iously handi cap the 14 Commit tee and C ourt in their efforts to re ach a fair determination 15 based ona complete record, an d usuall y result in waste of 16 Commit tee and C ourt res ources. 17 18 Warburgh , 644 F.3d at 176–77. Furthermore, as with the false testim ony 19 discussed in Gordon , an attorney’s failure to addres s important aspects of an 20 order to show cause in a disciplinary pr oceeding “also undermines the 21 remedial purposes of [the] disciplinary pr oceeding—since a pr oper r emedy 22 depends on accurate information—and demonstrates that the attorne y has not 23 fully accepted re sponsibility and may remain unable to ful fillhis obligations

241 as an officer of the Court.” Gordon , 780 F.3d at 160. 2 In the pres ent case, Ar anda failed to address sub stantialportions of our 3 order, concer ning conduct that i s central to this discipl inary inqu iry. For 4 purpose s of this decision, we assume that Aranda did not deliberately do so. 5 At the very least, howeve r, his omissions reflect gross negligence, as our or der 6 clearly set forth what Aranda was required to addres s in his respon se. Thus, 7 as in Warburgh and Gordon , we consider Ar anda’s omissions to be a significant 8 aggravating factor. 10 9 V. Voluntary Remedial Measures 10 In his respons e, Aranda s tated that he is taki ng steps to en sure that his 11 misconduct in this Court does not recur, including associating wi th more 12 expe rienced attorne ys, developing a chart of the s teps nece ssary to pe rfect an 13 appeal, and hiring more staff. SeeResponse ¶ 23. 14 We give Aranda’s as surance s lit tle weight. The pr esen t case is not 15 Aranda’s first wake-up call. The alarm has repe atedly sounded over the years

Aranda also failed to ful ly compl y with the directive in our orde r to 1 0 provide, and update, a complete list of al l cases in this Court in which he was counsel of rec ord or p erfor ming l egal services, as he failed to inform us of an appeal commenced after the filing of his respons e, see United States v. Gonzalez (Diaz) , No. 14-1878 (L). 251 – in 1986, 1989, 1993, 2006, and every time in the past sever al years that he 2 rece ived an order or telephone call from this Court re qui ring him t o addres s 3 his many defaults – but Aranda’s conduct remained unchanged. The clearest 4 sign of this pattern of misconduct i s his curre nt fail ure to addre ss much, or 5 most, of the mi sconduct descr ibed in our order to show cause. 6 VI. Appropriate Disciplinary Measures 7 Aranda’s cas e pre sents a number of aggravating factors and little 8 assurance that he can confor m his conduct to expected prof essional norms. 9 We accord s ignifi cant weight to: his prior discipl inary history, much of which 10 also invol ved neglect of his clients’ cases; the p attern of misconduct, invol ving 11 mul tipl e cases and covering a spanof years ; the fact that his defaults occurred 12 in criminal appeals, where signifi cant liber ty interests wer e at risk; his 13 continuing fai lure to take corre ctive acti on in Sanchez’s case, des pite it being 14 clear for more than two years that no appe al had been ope ned; the s ubstantial 15 prejudice Aranda’s defaults nearly caused Manigault; and hi s gross 16 negligence in fail ing to properly res pond to our orde r to show cause . After 17 weighing al l of Aranda’s misconduct, and the signifi cant aggravating factors, 18 we conclude that Aranda should be p ublicly repr imanded and suspende d

261 from practice befor e this Court for eighteen months. 11 See In re Tustaniwsky, 758 F.3d 179, 184-85 (2d Cir. 2014) (imposing 1 1 one-year suspens ion, based on, inter alia : defaults in twenty-tw o imm igration cases; de ficient briefs in five cases; knowingly fil ing meritl ess pleadings; prejudice to at least two cl ients whose case s were dismi ssed ondefault; expos ure of other clients to potenti al prejudice through defaults; lack of remorse ; only partialacknowledgment of wrongdoing; and hostile atti tude toward this Court’s C ommi ttee on Admissions and Grievances); In re Sobolevsky, 430 F. App’x 9, 10-11 (2d C ir. 2011) (imposi ng two-year suspe nsion, based on, inter alia : defaults in num erous immi gration cases; ex tremely poor briefing in sever al cases; inaccurate statements about those cases in the discipl inary procee ding; fil ing of pleadings drafted by non-lawyers ; and failu re to re spond to important findings in the rep ort of this Court’s Commit tee on Admissions and Grievances); In re Kulcsar , 417 F. App’x 15, 20 (2d Cir. 2011) (imposing six-month suspension, followed by one-year bar on repr esen ting l iti gants in this Court under the Criminal Justi ce Act (“CJA”), based on, inter alia : defaults in a number of criminalappeals, re sulting in the dismi ssal of five of those appe als; failure to re spond to numerous C ourt communi cations; viol ation of duty of di li gence; and viol ation of CJA rules requiring counsel to conti nue re pres entation unti l granted leave to withdraw and prohibiting delegati on of tasks to non-e mployees); In re Skyers , 382 F. App’x 11, 12-13 (2d C ir. 2010) (imposi ng two-year bar on rep rese nting li tigants in this Court under the CJA, b ased on, inter alia : defaults in two criminalappeals; failure to respond to multi ple inqu iries from the Cour t concer ning those cases ; failu re to pr operly re spond to the C ourt’s orde r to show cause why h e should not be disciplined; and signifi cant repr imand history). See also In re Hampden , 11 A.D.3d 17, 19-20 (2d D ep’t 2004) (imposing two-year suspe nsion, base d on: neglect of a criminal case; lengthy history of sanctions for pr ior identicalconduct; and “prolonged and r epeated patter n of failing to cooperate with the disciplinary authorities”); In re Banagan , 271 A.D.2d 748 (3d D ep’t 2000) (imposing tw o-year s uspension, bas ed on: ne glect of two criminal appeals; fail ure to cooper ate with di sciplinary commit tee; and prior disciplinary re cord); In re Lenkiewicz , 55 A.D.3d 251, 252-53 (4th De p’t 2008) (imposing seven-month suspens ion, based on: failure to res pond to inqu iries from a client in a criminalmatter; fail ure to re spond to, or comply 271 It i s further ORDERED as follows: 2 (a) The suspe nsion period willcommence twenty-eight days 3 from the date of this decision. Aranda may file any briefs that 4 curre ntly have fil ing deadli nes falling wi thin the next 5 twenty-eight days, and may see through to completion any case 6 in this Court in which his brief has bee n filed by the end of that 7 twenty-eight day period. However, any panel pre siding over a 8 case in which Aranda is re pres enting a party is free to r econsider 9 his continued repr esen tati on. 10 11 (b) With respe ct to allof his other pe nding cases in this Court, 12 Aranda must, within twenty-eight days: (i) inform hi s clients that, 13 due to his suspens ion, they must obtain new counse l or procee d 14 pro se, (ii) turn over allclient fi les and materials to those cli ents, to 15 the exten t required by applicable laws and rules, (ii i) cooperate in 16 allother r espe cts with his cl ients’ efforts to pr osecute their cas es, 17 and (iv) move to wi thdraw in each case in compl iance with Local 18 Rule 4.1 and any other applicable rules and, if appropr iate, move 19 for an ex tension of time to enable new counsel, or the client, to 20 prepar e for, and p rose cute, the appeal. 12

with, di sciplinary commit tee communications; and previous cen sure for simi lar conduct). Counse l to thi s panel is authorized to provide, upon re quest, all 1 2 documents from the re cord of this proce eding to other attorney disciplinary authoriti es. Although some of the documents in the re cord wer e treated as confidential by thi s Cour t, we of course leave to the discretion of those discipl inary authoriti es the de cision of whether spe cific docum ents, or portions of documents, should be made available to any personor the public. A supplemental order issued this date discusses , inter alia , the requirements for Ar anda’s disclosure of this decision and for his r eadmission to this Court’s bar af ter his suspe nsion period. 28