
    UNITED STATES of America, Plaintiff-Appellee, v. Jesse Ray WESTBROOK, Defendant-Appellant.
    No. 05-10142.
    United States Court of Appeals, Fifth Circuit.
    Dec. 12, 2006.
    Tanya K. Pierce, Assistant U.S. Attorney, Jeffrey Robert Haag, U.S. Attorney’s Office, Northern District of Texas, Lubbock, TX, for Plaintiff-Appellee.
    Jerry V. Beard, Assistant Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Lubbock, TX, for Defendant-Appellant.
    Jesse Ray Westbrook, Three Rivers, TX, pro se.
   W. EUGENE DAVIS, United States Circuit Judge.

ORDER:

Jesse Ray Westbrook pleaded guilty to possession of cocaine with intent to manufacture cocaine base. Westbrook’s plea agreement contained a waiver-of-appeal provision. Appointed counsel for West-brook has requested leave to withdraw and has filed a brief as required by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). If, on appeal, the Government does not seek to enforce an appeal waiver, the waiver is not binding. United States v. Story, 439 F.3d 226, 231 (5th Cir.2006). However, in this case the Government has not had an opportunity to address Westbrook’s appellate waiver.

“[I]t is defense counsel’s obligation to ascertain and certify that the Government would rely on the defendant’s appellate waiver before moving to withdraw.” United States v. Acquaye, 452 F.3d 380, 382 (5th Cir.2006). Accordingly, the motion to withdraw is DENIED without prejudice to its renewal. Westbrook’s counsel is directed to file a new Anders brief stating the Government’s position with respect to the waiver or a brief on the merits of this appeal within 30 days of the date of this order. See id.  