USA v. Westbrook, No. 05-10142 (5th Cir. 2006)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 12, 2006 Charles R. Fulbruge III Clerk No. 05-10142 USDC No. 6:04-CR-40-ALL UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JESSE RAY WESTBROOK, Defendant-Appellant. -------------------Appeal from the United States District Court for the Northern District of Texas -------------------O R D E R: Jesse Ray Westbrook pleaded guilty to possession of cocaine with intent to manufacture cocaine base. Westbrook s plea agreement contained a waiver-of-appeal provision. Appointed counsel for Westbrook has requested leave to withdraw and has filed a brief as required by Anders v. California, 386 U.S. 738 (1967). If, on appeal, the Government does not seek to enforce an appeal waiver, the waiver is not binding. Story, 439 F.3d 226, 231 (5th Cir. 2006). United States v. However, in this case the Government has not had an opportunity to address Westbrook s appellate waiver. O R D E R No. 05-10142 -2 [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, ___ F.3d ___, 2006 WL 1549951 at *2 (5th Cir. June 8, 2006). Accordingly, the motion to withdraw is DENIED without prejudice to its renewal. Westbrook 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. /s/ W. Eugene Davis W. EUGENE DAVIS UNITED STATES CIRCUIT JUDGE
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