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HOW TO FILE AN ANDERS BRIEF IN THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

General Instructions

These instructions detail the requirements for filing an “Anders brief” in the event defendant-appellant’s counsel determines that no non-frivolous issues exist on appeal after thorough review of the district court record. An Anders brief must set forth a “conscientious examination” of the appellant’s case and explain fully why there are no non-frivolous issues.

This Court has set a high standard for determining what constitutes a satisfactory Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967); Nell v. James, 811 F.2d 100, 104 (2d Cir. 1987).

In the event that counsel fails to articulate fully why there are no non-frivolous issues present, the Court may direct counsel to file a new brief addressing the inadequately briefed issues and possibly reduce or deny payment of counsel’s CJA fees. See United States v. Burnett, 989 F.2d 100, 105 (2d Cir. 1993). The Court may also elect to appoint new counsel when the submitted Anders brief is ruled insufficient. See id.

An Anders brief must state on the cover “Pursuant to Anders v. California, 386 U.S. 738 (1967).” A copy of the transcript of the proceedings below must be submitted with the brief. The transcript should be included in the appendix filed with the brief, as well.

When filing an Anders brief, counsel must file: (1) a motion to be relieved as counsel and (2) a Pre-Sentence Investigation Report (PSR). If the case involves imposition of a sentence constituting a variance from the United States Sentencing Commission Guidelines, counsel must also file the statement of reasons issued by the district court in accordance with Fed. R. Crim. P. 32(h). The Court of Appeals will review the PSR and statement of reasons, if filed, and determine the motion at the time it hears the case.

When filing an Anders brief, counsel must also submit to the Court an affidavit or affirmation stating that the client has been informed that:

  1. A brief pursuant to Anders v. California, 386 U.S. 738 (1967), has been filed;
  2. The filing of an Anders brief will probably result in the dismissal of the appeal and affirmance of the conviction; and
  3. The client may request assistance of other counsel or submit pro se response papers.

When counsel has reason to believe that the client may not speak English, or may be illiterate, or both, counsel’s affidavit or affirmation should describe counsel’s reasonable efforts to communicate to the client the above three Anders notice requirements and the substance of the Anders brief in a manner and a language understood by the client. See United States v. Leyba, 379 F.3d 53 (2d Cir. 2004); United States v. Santiago, 495 F.3d 27 (2d Cir. 2007).

In addition, counsel must submit proof of service detailing the means by which a copy of the Anders brief, the motion to be relieved as counsel, and the Court’s so-ordered scheduling notification was served on the client and any other party.

Response of U.S. Attorney: In lieu of an appellee’s brief, the U.S. Attorney may file a motion for summary affirmance. The time for filing the motion for summary affirmance is governed by the procedures set forth above regarding the timing for filing appellee’s brief.

Response of Defendant: When the attorney has submitted an Anders brief, the defendant has an automatic right to submit a pro se responsive brief arguing that there are meritorious issues to the appeal. A defendant who intends to file a responsive brief must notify the Court in writing within 14 days of receipt of the Anders brief and set forth the date by which the brief will be filed. Unless the case involves a voluminous transcript, the defendant must select a filing date that is within 91 days of receipt of the Anders brief. Defendant’s letter will be so-ordered unless the Court determines the selected filing date is unacceptable.

Anders Briefs in Guilty Plea Cases

To demonstrate compliance with Anders and Burnett, the Anders brief in guilty plea cases ordinarily must contain the following discussion points:

(1) Examination of the validity of the guilty plea — including whether the defendant was competent, whether the plea was knowing and voluntary and supported by a factual basis, and whether the district court complied with Federal Rule of Criminal Procedure 11 — and/or whether it would be against defendant’s interest to contest the plea. See United States v. Ibrahim, 62 F.3d 72, 74 (2d Cir. 1995).
(2) Examination of the validity and scope of any waiver of the right to appeal the conviction or sentence, in light of the standard discussed in United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000). If counsel concludes that there is no basis to contest the validity of the waiver, counsel’s brief must address only: (a) whether defendant’s waiver of appellate rights was knowing, voluntary, and competent; (b) whether defendant’s plea was knowing, voluntary, and competent or whether it would be against defendant’s interest to contest the plea; and (c) whether any issues implicate defendant’s constitutional or statutory rights that either cannot be waived or considered waived in light of the circumstances. See id. at 319. Additionally counsel’s brief must address the scope of the defendant’s waiver (i.e., whether the waiver bars the defendant from appealing the conviction; the imprisonment component of the sentence; and/or any non-imprisonment components of the sentence) and whether any ambiguity in the language of the waiver affects the validity and scope of the waiver. See, e.g., United States v. Oladimeji, 463 F.3d 152, 156-57 (2d Cir. 2006). If the waiver does not unambiguously cover certain components of the sentence, counsel’s brief must discuss whether there is any nonfrivolous basis for challenging those components of the sentence.
(3) Examination of the Government’s compliance with any plea agreement.
(4) Examination of the substantive and procedural reasonableness of the sentence, including whether the district court complied with Federal Rule of Criminal Procedure 32, whether the district court committed any significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors, or failing to adequately explain the imposed sentence and any deviation from the Guidelines range, and whether the sentence is substantively reasonable. Counsel may, however, pretermit examination of any component of the sentence that is within the scope of a valid waiver of appellate rights. See Gomez-Perez, 215 F.3d at 319.
(5) If the district court imposed a sentence that was outside of the Guideline range, examination of whether the district court complied with 18 U.S.C. § 3553(c)(2) by preparing a written statement of reasons (counsel must also submit any such statement of reasons with the Anders motion). See United States v. Hall, 499 F.3d 152 (2d Cir. 2007)(per curiam); but see United States v. Elbert, __ F.3d ___, 2011 WL 4347191 (2d Cir. 2011) (partially abrogating Hall with respect to the nature of the remedy for noncompliance with 18 U.S.C. § 3553(c)(2)).

Counsel is strongly encouraged to use the Court’s Anders checklist to ensure compliance with Anders and Burnett. The checklist is available here.

 

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Last modified at 10/24/2011
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