A Non-Frivolous Issue

An attorney on appeal filed an Anders brief in a case that had a meritorious sentencing issue, according to an opinion of the United States Court of Appeals for the Fifth Circuit.

The court recalled its mandate and reinstated the appeal.

Simply stated, the district court committed plain error by sentencing Emeary to fifteen years of incarceration when the statutory maximum was ten, and this court committed plain error when we deemed Emeary’s appeal frivolous and dismissed it without any notice of the issue. The Supreme Court has recognized that, while the Anders process is intended “to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over,” Penson v. Ohio, 488 U.S. 75, 85 (1988), the process is imperfect and cannot “eliminate all risk of error,” Smith, 528 U.S. at 277 n.8. That acknowledgment demands a concomitant willingness of courts to correct plain errors that escaped notice, at least in some circumstances. In my view, those circumstances are present here. A criminal defendant should not be unlawfully condemned to five excessive years in prison—a “drastic loss of liberty,” Penson, 488 U.S. at 85—based on the sort of clear and obvious error we made in this case.

The order came from a Circuit Judge Dennis in chambers.

Practice pointer here: Anders is a last and disfavored resort. (Mike Frisch)