United States v. Mason, D'Marcus ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2482
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
D’MARCUS MASON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 01 CR 23—Sarah Evans Barker, Judge.
____________
SUBMITTED AUGUST 25, 2003—DECIDED SEPTEMBER 9, 2003
____________
Before POSNER, EASTERBROOK, and DIANE P. WOOD, Circuit
Judges.
POSNER, Circuit Judge. D’Marcus Mason was sentenced to
135 months in prison for a drug offense, having pleaded
guilty pursuant to a plea agreement, and he filed a timely
notice of appeal. Although he has not yet filed his opening
brief, the government has moved to dismiss the appeal,
arguing that we lack jurisdiction because Mason waived his
appeal rights as part of a plea agreement. (In fact a waiver
of appeal rights does not deprive us of our appellate
jurisdiction, although it is a ground for dismissing the
appeal.) Mason’s counsel has filed a response in which he
2 No. 03-2482
agrees that the appeal should be dismissed because of the
waiver and asks for leave to withdraw as counsel pursuant
to Anders v. California, 386 U.S. 738 (1967), which authorizes
a criminal defendant’s lawyer to withdraw from the repre-
sentation of his client on appeal if there are no nonfrivolous
grounds for an appeal. The novelty that gives rise to this
opinion is a motion by counsel in a criminal case to with-
draw by filing a response to a motion to dismiss, rather than
by filing a formal Anders brief when the opening brief on
appeal is due.
A waiver of appeal even in a criminal case is normally
valid and binding, e.g., United States v. Nave, 302 F.3d 719,
720-21 (7th Cir. 2002); United States v. Brown, 328 F.3d 787,
788 (5th Cir. 2003); United States v. Andis, 333 F.3d 886, 889
(8th Cir. 2003); but it “does not, in every instance, foreclose
review.” United States v. Sines, 303 F.3d 793, 798 (7th Cir.
2002). The plea agreement containing the waiver may have
preserved some issue for appeal. United States v. Behrman,
235 F.3d 1049, 1052 (7th Cir. 2000). Or, if the plea agreement
turns out to be unenforceable, maybe because the govern-
ment committed a material breach or the plea was involun-
tary on the part of the defendant, the waiver falls with the
agreement and the appellant can appeal. United States v.
Woolley, 123 F.3d 627, 632 (7th Cir. 1997); United States v.
Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002); United States v.
Keresztury, 293 F.3d 750, 759-60 (5th Cir. 2002).
Ordinarily the government urges waiver of appeal after
the defendant has filed either a merits brief or an Anders
brief. But in this case the government decided not to wait
for the opening brief to be filed (which is when an Anders
brief would be due), instead moving to dismiss the appeal
only a month after it was docketed and three months before
Mason’s opening brief was due. The government cannot be
faulted for proceeding thus. It has a right to file a motion to
No. 03-2482 3
dismiss an appeal before briefing is completed, or for that
matter begun. Rule 27 of the Federal Rules of Appellate
Procedure, which governs motions in appeal proceedings,
does not specify when a motion to dismiss can be filed; and
appellees are urged to move to dismiss frivolous appeals
before briefing, in order to save the parties’ money and the
court’s time. Brooks v. Allison Division of General Motors Corp.,
874 F.2d 489 (7th Cir. 1989) (chambers opinion). However,
by moving as it did, the government put pressure on
Mason’s counsel to decide quickly whether his client might
have any nonfrivolous ground for appeal. Rule 27(a)(3)(A)
allows only eight business days to respond to a motion,
though the time can be extended by the court. Id. Eight days
(ten, if the weekend is included) is a short time for
a defendant’s lawyer to comply with the duty imposed by
the Anders decision, which is not just to assert that there are
no nonfrivolous grounds of appeal but to substantiate the
assertion by discussing any ground of appeal conceivably
supported by the record. Penson v. Ohio, 488 U.S. 75, 80
(1988) United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997)
(per curiam). The client, moreover, is entitled to respond to
his counsel’s motion to withdraw, id.; 7th Cir. R. 51(b), since
the normal sequel to the grant of the Anders motion is to
affirm the judgment summarily.
So by filing the motion to dismiss, the government ef-
fectively shortened by several months (barring such exten-
sions of time as the court might grant) the time that counsel
had in which to assess Mason’s case and file a brief that, if
he believed Mason’s appeal waiver unarguably valid,
would comply with Anders. Yet despite this handicap,
counsel was able to prepare a response that is the full
equivalent of an Anders brief. He states in the response that
he has reviewed the entire record and given the case
thorough consideration, and his statement is corroborated
by the detailed discussion in the response of the facts of the
4 No. 03-2482
case, of the language of the appeal waiver, and of the Rule
11 colloquy. The response discusses several potential
challenges to the waiver but concludes that all would be
frivolous. It would be the height of formalism to refuse to
treat the response to the motion to dismiss as an Anders brief
merely because it is not labeled a brief and was not filed
when the opening brief in the appeal was due. United States
v. Gomez-Perez, 215 F.3d 315, 320-21 (2d Cir. 2000) (per
curiam). We are therefore directing our Clerk to send Mason
a copy of his counsel’s response, and he will have the usual
opportunity to respond pursuant to 7th Cir. R. 51. For the
sake of judicial economy, the appeal will then be submitted
to this motions panel.
It should go without saying that when the government
moves to dismiss a criminal appeal, the appellant’s lawyer
will be entitled to any extensions of time for responding that
he may need in order to be able to satisfy the obligations
imposed by Anders.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-9-03