Second Circuit finds obligation to brief reasonableness in Anders motion

The Second Circuit issued an interesting little per curiam ruling today in US v. Whitley, No. 05-3359 (2d Cir. Sept. 17, 2007) (available here).  The start and heart of the ruling provides the highlights:

In two separate appeals from criminal convictions, consolidated for disposition, court-appointed defense counsel move to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967), on the ground that there is no non-frivolous basis for appeal.  Because counsel’s Anders briefs fail to address adequately the reasonableness of defendants’ sentences, we deny the motions to withdraw….

[W]e hold that an Anders brief should include a discussion of the reasonableness of a defendant’s sentence.  Counsel should typically address both the substantive and procedural reasonableness of the sentence.

Notably, the consolidated cases at issue here both appear to involve within-guideline sentences.  Consequently, the Second Circuit indirectly holds that the fact a sentence was within the guidelines alone does not suffice to justify an Anders brief.  (Ironically, Judge Posner, as detailed here and here, has written Seventh Circuit opinions that suggest that Anders briefs may be required when certain defendants insist upon appealing within-guideline and even some above-guideline sentences.)