United States v. Nelson Ayala-Duran , 360 F. App'x 773 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 08-10160, 08-10161
Plaintiff - Appellee, D.C. Nos. 2:01-cr-00799-SMM
2:07-cr-00564-SMM
v.
NELSON AYALA-DURAN,
MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
In these consolidated appeals, Nelson Ayala-Duran appeals from: (1) his
jury-trial conviction and 63-month sentence for illegal re-entry after deportation, in
*
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).
EF/Research
violation of 8 U.S.C. § 1326(a); and (2) the district court’s revocation of his
supervised release and imposition of a 36-month concurrent sentence. Pursuant to
Anders v. California, 386 U.S. 738 (1967), Ayala-Duran’s counsel has filed a brief
stating there are no grounds for relief in either appeal, along with a motion to
withdraw as counsel of record in both appeals. We have provided the appellant
with the opportunity to file a pro se supplemental brief. No pro se supplemental
brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED. We remand in
case # 2:07-cr-00564-SMM for the limited purpose of correcting the judgment so
that it is consistent with the district court’s oral pronouncement regarding
applicability of the fine. See, e.g., United States v. Hicks, 997 F.2d 594, 597 (9th
Cir. 1993). We also remand in case # 2:01-cr-00799-SMM for the limited purpose
of correcting the judgment so that the sentence does not exceed the 24-month
statutory maximum. See 18 U.S.C. § 3583(e)(3). The judgments are AFFIRMED
in all other respects.
EF/Research 2 08-10160, 08-10161