930 F. 2d 29 - United States v. Broadnax

MEMORANDUM**

Defendant-appellant Reginald Broadnax (Broadnax) entered a guilty plea under North Carolina v. Alford, 400 U.S. 25 (1970) to a charge of being a felon in possession of a firearm under 18 U.S.C. Sec. 922(g). Broadnax had been convicted after a jury trial in Oregon state court of the underlying offenses of two armed robberies, committed on March 29 and March 30, 1987. Broadnax had originally entered a plea of not guilty before the district court to the felony charge. However, after the government filed an information for sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e), Broadnax indicated to his attorney that he wished to take advantage of the district court's sentence offer rather than risk conviction at trial.1 Broadnax changed his plea to "guilty" under Alford and Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure. In accord with the plea agreement, the district court sentenced Broadnax to 15 years in prison, to be served concurrently with his Oregon state sentence of 20 years.

Broadnax's appeal is supported only by his attorney's brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that Broadnax has not preserved any appealable issues.

A motion by defense counsel voluntarily to dismiss this appeal, submitted together with an explanation of counsel, was denied by a two-judge panel of this court on December 2, 1988 and referred to the merits panel, with suggestion that counsel file an Anders brief. Under Anders, appellate defense counsel who, after careful evaluation, "conscientiously determines that there is no merit to the indigent's appeal," id. at 739, should so advise the court, request permission to withdraw, and furnish the court and the defendant with anything arguably supporting the appeal. Defense counsel has followed these steps in the present case. The only potential issue is whether Broadnax considers the advice he received from counsel to fall below the range of reasonable competence so as to amount to ineffective assistance of counsel under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668 (1984). Counsel argues correctly that he would be unable to represent Broadnax effectively in such a challenge due to conflict of interest. Although Broadnax was advised by our order of January 31, 1989 of his right to set forth in his own pro se supplemental opening brief "any issues he wishes to be considered on appeal," he has not done so.

The motion of Kenneth Lerner, Esq., to withdraw as counsel of record under Anders v. California, supra, is GRANTED. Appointment of substitute counsel is unnecessary. The judgment of the district court is AFFIRMED.