United States v. Moore

210 F. App'x 350

Opinion

W. EUGENE DAVIS, United States Circuit Judge.

ORDER:

Jainigal Moore pleaded guilty to one count of aiding and abetting the possession with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine. Moore’s plea agreement contained a waiver-of-appeal provision. Appointed counsel for Moore has requested leave to withdraw and has filed a brief as required by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). If, on appeal, the Government does not seek to enforce an appeal waiver, the waiver is not binding. United States v. Story, 439 F.3d 226, 231 (5th Cir.2006). However, in this case the Government has not had an opportunity to address Moore’s appellate waiver.

“[I]t is defense counsel’s obligation to ascertain and certify that the Government would rely on the defendant’s appellate waiver before moving to withdraw.” United States v. Acquaye, 452 F.3d 380, 382 (5th Cir.2006). Accordingly, the motion to withdraw is DENIED without prejudice to its renewal. Moore’s counsel is directed to file a new Anders brief stating the Government’s position with respect to the waiver or a brief on the merits of this appeal within 30 days of the date of this order. See id.