United States of America, Plaintiff-appellee, v. Jose Manuel Arana-galicia, Defendant-appellant, 981 F.2d 1044 (9th Cir. 1992)

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U.S. Court of Appeals for the Ninth Circuit - 981 F.2d 1044 (9th Cir. 1992) Dec. 4, 1992

David J. Cohen, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant Jose Manuel Arana-Galicia.

Barbara L. Major, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee U.S.

Before: TANG, BEEZER and KOZINSKI, Circuit Judges.


On April 16, 1992, the court ordered appellant to show cause for failure to timely file an opening brief. Appellant's counsel responded and moved to be relieved as counsel of record. Counsel stated that he believed that the appeal lacked merit because appellant had waived his right to appeal pursuant to a plea agreement.

On June 1, 1992, this court ordered appellant to show cause why this appeal should not be dismissed on the basis of his waiver. See United States v. Navarro-Botello, 912 F.2d 318 (9th Cir. 1990). On August 18, 1992, the court further ordered appellee to respond to counsel's motion to withdraw. Appellee was ordered to address the issue whether the appeal should be dismissed.

The court has received and reviewed the parties' responses. Appellee's motion to dismiss the appeal, contained in its response, is denied.

Appellant's counsel shall file an opening brief, pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and United States v. Griffy, 895 F.2d 561 (9th Cir. 1990), by January 11, 1993. In the meantime, appellant may file a pro se supplemental brief by January 25, 1993. Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Appellee's answering brief is due February 25, 1993. Appellant's reply brief, if any, is due March 11, 1993.

Appellee may renew its motion to dismiss following filing of the Anders brief and the pro se supplemental brief.

Judge Kozinski dissents for the reasons set forth in his dissent in United States v. Gonzalez, 981 F.2d 1037 (9th Cir. 1992), which immediately precedes this Order.