Background
Larry Simmons appealed his criminal conviction from the United States District Court for the Northern District of Texas. The Federal Public Defender appointed to represent Simmons on appeal filed a motion to withdraw, accompanied by a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). In the Anders brief, counsel represented that the appeal presented no non-frivolous issues for appellate review. Simmons did not file a response to counsel’s motion or brief.
The Court’s Holding
The Fifth Circuit reviewed counsel’s brief and relevant portions of the record, as required by Anders procedure. The court concurred with counsel’s assessment that the appeal contained no non-frivolous issues for appellate review. Accordingly, the court granted the motion to withdraw, excused counsel from further responsibilities, and dismissed the appeal.
However, the court identified a clerical error on the first page of the judgment concerning the date that Simmons’s offense ended. The court therefore remanded the case for entry of a corrected written judgment under Federal Rule of Criminal Procedure 36, citing United States v. Fults, 71 F.4th 328 (5th Cir. 2023), and United States v. Higgins, 739 F.3d 733 (5th Cir. 2014).
Key Takeaways
- When appointed counsel believes an appeal lacks merit, Anders procedure allows withdrawal after filing a brief identifying potential issues for the court’s independent review.
- The appellate court must independently review the record to verify counsel’s assessment, even when counsel finds no non-frivolous issues.
- Clerical errors in judgments are corrected on remand, regardless of whether the underlying appeal succeeds.
- No non-frivolous appellate issues existed in Simmons’s criminal conviction.
Why It Matters
This unpublished summary calendar decision illustrates the routine but important application of Anders procedure in criminal appeals. When appellate counsel concludes an appeal is frivolous, the Fifth Circuit independently verifies that conclusion before dismissing. This ensures appellate review remains meaningful even in cases where conviction appears sound.
The court’s attention to the clerical error—remanding despite dismissing the appeal—demonstrates the judiciary’s commitment to accurate record-keeping in criminal cases. Proper judgment dates are essential for calculating sentencing, parole eligibility, and other time-sensitive administrative matters.