United States v. Ortega — Fifth Circuit dismissed the appeal but remanded to correct a clerical error

Case
United States of America v. Jesus Guadalupe Ortega
Court
U.S. Court of Appeals for the Fifth Circuit
Judge
King (Jimmy Carter, 1979); Higginson (Barack Obama, 2011); Douglas (Joseph R. Biden Jr., 2022)
Date Decided
July 20, 2026
Docket No.
25-40448
Topics
Criminal Appeals; Revocation Judgments; Clerical Errors; Anders Briefs
Source
Read the full opinion

Background

Jesus Guadalupe Ortega appealed from a judgment revoking his supervised release. His appointed attorney moved to withdraw and filed a brief under Anders v. California and United States v. Flores, representing that the appeal presented no nonfrivolous issue. Ortega did not respond.

The initial revocation judgment incorrectly identified the violations to which Ortega had pleaded true. After Ortega filed his notice of appeal, the district court entered an amended judgment correctly listing those violations.

The Court’s Holding

The Fifth Circuit independently reviewed counsel’s brief and the relevant portions of the record and agreed that the appeal presented no nonfrivolous issue. It therefore granted counsel’s motion to withdraw, excused counsel from further responsibilities, and dismissed the appeal under Fifth Circuit Rule 42.2.

The court nevertheless held that a remand was required to correct the initial judgment’s clerical error. Ortega’s notice of appeal had divested the district court of jurisdiction before it entered the amended judgment, and the amendment occurred outside Federal Rule of Criminal Procedure 35(a)’s 14-day correction period. The amended judgment therefore appeared void, leaving the erroneous initial judgment operative. The court remanded for correction under Federal Rule of Criminal Procedure 36.

Key Takeaways

  • A notice of appeal generally divests the district court of jurisdiction over matters involved in the appeal.
  • An amended criminal judgment entered after appellate jurisdiction attaches and outside Rule 35(a)’s 14-day period may be void.
  • The Fifth Circuit may dismiss an Anders appeal as frivolous while remanding for correction of a clerical error under Rule 36.

Why It Matters

The decision underscores that even when a criminal appeal raises no nonfrivolous merits issue, appellate review can uncover an error requiring limited remand. It also highlights the jurisdictional consequences of filing a notice of appeal and the distinct roles of Rules 35(a) and 36 in correcting criminal judgments.

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