In the United States Court of Appeals For the Second Circuit

August Term, 2023 No. 22-1355-cr

UNITED STATES OF AMERICA, Appellee,

v.

ALEXANDER ARGUEDAS, AKA SEALED DEFENDANT 1, Defendant-Appellant. *

On Appeal from a Judgment of the United States District Court for the Southern District of New York.

SUBMITTED: APRIL 11, 2024 DECIDED: APRIL 9, 2025

Before: JACOBS, NARDINI, AND MENASHI, Circuit Judges.

* The Clerk of Court is respectfully directed to unconsolidate Defendant- Appellant Mark Brock’s appeal, No. 22-543, which has been resolved separately, see United States v. Brock, No. 22-1355-CR, 2024 WL 2013673 (2d Cir. May 7, 2024) (summary order), and to amend the official caption of this case as set forth above. Defendant-Appellant Alexander Arguedas pled guilty pursuant to a plea agreement in the United States District Court for the Southern District of New York to a racketeering conspiracy, a narcotics conspiracy, and using and carrying firearms in furtherance of a narcotics conspiracy. The district court (Jesse M. Furman, District Judge) imposed a below-Guidelines sentence of 390 months of imprisonment, to be followed by five years of supervised release, and a special assessment of $300. The district court also imposed mandatory, standard, and special conditions of supervised release. Arguedas appealed. His appellate counsel has now moved to be relieved and for appointment of substitute counsel, and submitted a brief in accordance with Anders v. California, 386 U.S. 738 (1967). In response, the government has moved to dismiss the appeal as barred by an appeal waiver contained in the plea agreement or, in the alternative, for summary affirmance. Despite appellate counsel’s diligence, the Anders brief is incomplete because it does not address Arguedas’s conditions of supervised release, which fall outside the scope of the appeal waiver. Such a deficiency in an Anders brief, however, is not necessarily fatal to a lawyer’s motion to withdraw. We hold that we may nevertheless grant counsel’s motion to be relieved when a deficiency in the Anders brief is harmless. Where counsel fails to address aspects of the sentence not covered by the appeal waiver, that deficiency: (1) is harmless when we can determine from the record that there are no non-frivolous issues to raise regarding the aspects of the sentence not covered by the appeal waiver; or (2) can be cured if counsel represents that he has discussed with the defendant the potential benefits and risks of challenging those aspects of the sentence that fall outside the appeal waiver, and that the defendant has authorized counsel not to pursue an appeal with regard to those matters. Applying the harmlessness analysis here, we conclude that there are no non-frivolous issues with respect to the mandatory,

2 standard, and five of the seven special conditions of supervised release, and that appellate counsel’s failure to address those conditions in the Anders brief is therefore harmless. However, the two remaining special conditions concerning financial disclosure and new lines of credit potentially raise non-frivolous issues for appeal. Accordingly, we defer decision on the motions and order the parties to file supplemental briefing.

Brandon D. Harper, Assistant United States Attorney, for Matthew Podolsky, Acting United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Lucas Anderso