The Third Circuit issued a remarkable unpublished opinion today in a criminal appeal, US v. Parsons, link here. The opinion is by Judge Barry, joined by Judges Fuentes and Shwartz.

I’m not sure I can tell the story any more clearly than the opinion does, so here it is:

In Anders, the Supreme Court emphasized that “[Counsel’s] role as advocate requires that he support his client’s appeal to the best of his ability.” 386 U.S. at 744. An attorney may seek permission to withdraw if he finds a case to be “wholly frivolous” after a “conscientious examination” of the record; such request must, however, “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. If the court agrees that the case is wholly frivolous, “it may grant counsel’s request to withdraw and dismiss the appeal,” but, “[o]n the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id.

* * *

In this case, counsel’s brief was, at least technically, inadequate under Anders. Although counsel listed the issue of “[i]nterpretation and application” of § 4A1.2(c)(1) in his statement of issues, he addressed the issue only in two footnotes that fail to explain why it was frivolous. (See Anders Br. at 9-10 n.2, n.3.) He likewise devoted only one sentence to the denial of a reduction for acceptance of responsibility, the second issue raised by Parsons in his pro se brief. (See id. at 19.) Simply stated, counsel failed to meaningfully deal with the two issues later raised by Parsons, such that we can be assured that he has considered them and found them “patently without merit,” see Marvin, 211 F.3d at 781; indeed, the Government itself acknowledges that a non-frivolous issue exists.

Parsons’ argument with respect to § 4A1.2(c) is, as the Government recognizes, non-frivolous. Section 4A1.2(c) provides that certain sentences, including sentences for a disorderly conduct offense, are included in the criminal history calculation only if “the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days” or if the prior offense was “similar to an instant offense.” Here, according to the PSR, Parsons’ 2006 disorderly conduct offense resulted in no punishment beyond the payment of fines and costs, and it is not similar to the instant firearms offenses. See U.S.S.G. § 4A1.2 cmt. n. 12(A). As the Government, to its credit, recognizes, this offense was erroneously counted, and the additional criminal history point bumped Parsons up into Criminal History Category V, resulting in a Guidelines range of 140 to 175 months. Had Parsons correctly been placed in Category IV, his Guidelines range would have been 121 to 151 months. His sentence, a total of 160 months’ imprisonment, could well have been lower had the Court calculated the correct Guidelines range.

The court vacated the sentence and remanded for resentencing without the erroneously-applied criminal history point.

As embarrassing appellate mistakes go, it doesn’t get much worse than filing an Anders brief and then having the court reverse under plain error. The opinion does not identify the attorney by name, but the docket indicates that the Anders brief was filed by Roland B. Jarvis, a Philadelphia lawyer appointed by the court. The AUSA praised by the court is Joseph LaBar.

I applaud the government and the court here. It would have been only human to pay less attention to the pro se brief after the defendant’s own lawyer had certified that the issues were all wholly frivolous, but instead the prosecutor and the judges here did their jobs.

I do have a concern about the court’s ruling, though. The court chose to remand now instead of appointing new counsel and allowing supplemental briefing, and it explained that it did so because “no one, including defense counsel in his effort to comply with the strictures of Anders, even obliquely refers to any potential issue as to the conviction itself.” Is the court saying it is confident that there are no other appealable errors, besides the one the pro se defendant found — and that the basis for this confidence is that no such errors were found by (1) the lawyer who filed the erroneous Anders brief, (2) the pro se defendant, or (3) the prosecution? If so, that confidence seems questionable.

And after the government confessed error but before today’s ruling, the defendant apparently asked the court to appoint new counsel for him, resulting in a clerk order which stated in part:

If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the Court in its review, it will appoint substitute counsel, order supplemental briefing and restore the case to the calendar. The panel will also determine whether to continue the appointment of current counsel or to direct the Clerk to discharge current counsel and appoint new counsel. As appellant’s request for appointment of new counsel is an inherent part of the Court’s determination when presented with a case submitted pursuant to Anders v. California, 386 U.S. 738 (1967), no action will be taken on appellant’s request.

This order reinforces my uncertainty about whether remand for resentencing without appointment of counsel and supplemental briefing was the right disposition here.

Anyway, a very interesting case.