United States v. Pedro Zamora-Ochoa , 563 F. App'x 562 ( 2014 )

FILED
NOT FOR PUBLICATION MAR 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10671
Plaintiff - Appellee, D.C. No. 3:11-cr-00081-HDM
v.
MEMORANDUM*
PEDRO ZAMORA-OCHOA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Pedro Zamora-Ochoa appeals from the district court’s judgment and
challenges his guilty-plea conviction and 120-month sentence for distribution of a
controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii).
Pursuant to Anders v. California, 386 U.S. 738 (1967), Zamora-Ochoa’s counsel
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
has filed a brief stating that there are no grounds for relief, along with a motion to
withdraw as counsel of record. We have provided Zamora-Ochoa the opportunity
to file a pro se supplemental brief. No pro se supplemental brief or answering brief
has been filed.
Zamora-Ochoa has 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), 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). We accordingly dismiss
the appeal. See id. at 988.
Appellate counsel argues that trial counsel was ineffective because he
stipulated that Zamora-Ochoa’s possession of a firearm rendered him ineligible for
safety valve relief, but the record reflects the parties’ understanding that the gun
belonged to Zamora-Ochoa’s co-defendant. This claim is not precluded by the
appeal waiver, but its resolution requires further development of the record and we,
therefore, decline to order it briefed on direct appeal. See United States v. Rahman,
642 F.3d 1257, 1259-60 (9th Cir. 2011). Zamora-Ochoa may, however, raise the
claim in collateral proceedings through a 28 U.S.C. § 2255 motion. See id. at
1260.
Counsel’s motion to withdraw is GRANTED.
2 12-10671
DISMISSED.
3 12-10671