United States v. Joseph Loftis ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30228
Plaintiff-Appellee, D.C. No. 2:15-cr-00011-DLC-1
v.
MEMORANDUM*
JOSEPH BRENT LOFTIS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.
Joseph Brent Loftis appeals from the 82-month sentence imposed upon
remand for resentencing following his jury-trial convictions for multiple counts of
wire fraud, in violation of 18 U.S.C. § 1343, and money laundering, in violation of
18 U.S.C. § 1957. Pursuant to Anders v. California, 386 U.S. 738 (1967), Loftis’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
counsel has filed a brief stating that there are no grounds for relief, along with a
motion to withdraw as counsel of record. Loftis has filed a pro se supplemental
opening brief. No answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80 (1988), discloses no arguable grounds for relief on direct appeal. Contrary
to Loftis’s pro se assertion, the district court correctly calculated the Guidelines
range on remand. Loftis’s additional pro se arguments cannot be raised in the
instant appeal because they were not raised in his first appeal. See United States v.
James, 109 F.3d 597, 599 (9th Cir. 1997) (claim that is not raised in first direct
appeal may not be raised in second appeal). We do not reach on direct appeal
Loftis’s claim that his counsel from his first appeal provided ineffective assistance.
See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011). Loftis may
raise that claim, as well as any other claim requiring development of facts outside
the record, in a 28 U.S.C. § 2255 motion.
Counsel’s motion to withdraw is GRANTED.
AFFIRMED.
2 19-30228