United States v. Ronald McCullough ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30137
Plaintiff-Appellee, D.C. No. 2:19-cr-00007-SMJ-1
v.
MEMORANDUM*
RONALD STEPHEN MCCULLOUGH,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Ronald Stephen McCullough appeals from the district court’s judgment and
challenges his guilty-plea conviction and 108-month sentence for possession with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(viii). Pursuant to Anders v. California, 386 U.S. 738 (1967),
*
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).
McCullough’s counsel has filed a brief stating that there are no grounds for relief,
along with a motion to withdraw as counsel of record. McCullough has filed pro
se supplemental opening and reply briefs, and the government has filed an
answering brief.
McCullough waived his right to appeal his conviction and sentence. Our
independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80
(1988), and the parties’ briefs, discloses no arguable issue as to the validity of the
waiver. See United States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009).
McCullough’s pro se challenges to the district court’s imposition of a two-level
enhancement for possessing a dangerous weapon, and to the substantive
reasonableness of his sentence, are encompassed by the waiver. See United States
v. Martinez, 143 F.3d 1266, 1271 (9th Cir. 1998) (“When a plea agreement
expressly waives a defendant’s right to appeal a sentence, the waiver extends to an
appeal based on an incorrect application of the sentencing guidelines.”).
Furthermore, the record reflects that, during the change of plea hearing, the district
court correctly advised McCullough as to the terms of the waiver and confirmed
his understanding of those terms. See Fed. R. Crim. P. 11(b)(1)(N). Even
assuming McCullough is correct that the court’s description of the waiver at the
subsequent sentencing hearing was ambiguous, the record makes clear that the
court did not provide McCullough an unqualified advisement that he could appeal
2 20-30137
his sentence. See United States v. Arias-Espinosa, 704 F.3d 616, 620 (9th Cir.
2012) (oral advisement of the right to appeal vitiates written waiver only if oral
advisement is made “unequivocally, clearly, and without qualification”). Finally,
to the extent McCullough argues that his attorney provided ineffective assistance
by failing to explain the waiver adequately, we do not reach that claim on direct
appeal. See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).
In light of the enforceable appeal waiver, we dismiss the appeal. See
Watson, 582 F.3d at 988.
Counsel’s motion to withdraw is GRANTED. McCullough’s pro se motion
for appointment of substitute counsel is DENIED.
DISMISSED.
3 20-30137