UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 11, 2011
UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
GERARDO GARCIA-ANTONIO, DEFENDANT - APPELLANT.
D.C. No. 2:08-CR-01208-MHM District of Arizona, Phoenix
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
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.
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