United States v. Westbrook

United States Court of Appeals
Fifth Circuit
F I L E D
December 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10142
USDC No. 6:04-CR-40-ALL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSE RAY WESTBROOK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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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. 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 Westbrook’s
appellate waiver.

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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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