United States v. Gerardo Garcia-Antonio

FILED

UNITED STATES COURT OF APPEALS APR 11 2011

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA, No. 09-10084

Plaintiff - Appellee, D.C. No. 2:08-CR-01208-MHM District of Arizona, v. Phoenix

GERARDO GARCIA-ANTONIO,

ORDER

Defendant - Appellant.

Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges

Counsel for appellant has filed a brief stating that he finds no meritorious

issues for review and a motion to withdraw as counsel of record pursuant to Anders

v. California, 386 U.S. 738 (1967). No pro se supplemental brief or answering

brief has been filed.

Our independent review of the record, see Penson v. Ohio, 488 U.S. 75, 83-

84 (1988), discloses the following potentially arguable issue for direct appeal:

Does Garcia-Antonio’s prior conviction under California Penal Code section

288(c) qualify as a crime of violence warranting a sixteen-level increase under

U.S.S.G. § 2L1.2(b)(1)(A)(ii)? See United States v. Castro, 607 F.3d 566, 567 (9th

Cir. 2010), which was filed after briefing was completed.

Counsel’s motion to withdraw is denied. The Anders brief filed December 21, 2009 is stricken. Counsel may brief

any issues deemed appropriate, but in particular shall address the issue identified

above. Appellant’s replacement opening brief and any supplement to the excerpts

of record filed December 23, 2009 are due June 6, 2011; appellee’s brief is due

July 6, 2011; the optional reply brief is due within 14 days after service of

appellee’s brief.

The clerk shall serve a copy of this order on appellant personally, as well as

on appellee James Knapp, Assistant U.S. Attorney, U.S. Attorney’s Office, Two

Renaissance Square, 40 N. Central Ave. Ste. 1200, Phoenix, Arizona 85004-4408.

This panel does not retain jurisdiction over the appeal.

2 09-10084