United States v. Jesus Moreno , 466 F. App'x 639 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 23 2012
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, No. 10-50409
Plaintiff - Appellee, D.C. No. 2:09-cr-00851-PSG
v.
MEMORANDUM *
JESUS LIZARRAGA MORENO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted January 17, 2012 **
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Jesus Lizarraga Moreno appeals from his guilty-plea convictions and 240-
month sentence for distribution of methamphetamine, being a prohibited person in
possession of a firearm, and being an illegal alien found in the United States
following deportation, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii), 18
*
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).
U.S.C. § 922(g), and 8 U.S.C. § 1326(a), respectively, with an enhancement for a
prior conviction under 21 U.S.C. § 851(a)(1). Pursuant to Anders v. California,
386 U.S. 738 (1967), Moreno’s counsel 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 Moreno with the opportunity to file a pro se supplemental brief. No pro
se supplemental brief or answering brief has been filed.
Moreno waived his right to appeal his sentence with the exception of
nonstandard conditions of supervised release. Our independent review of the
record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81 (1988), discloses no
arguable grounds for relief as to the defendant’s conviction and indicates that the
appeal waiver is operative. Accordingly, we dismiss the appeal of the sentence in
part. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000). With
regard to the nonstandard conditions of supervised release, our independent review
of the record disclosed no arguable grounds for relief on direct appeal, and we
affirm.
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United
2 10-50409
States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte
to delete the reference § 1326(b)).
Counsel’s motion to withdraw is GRANTED.
AFFIRMED in part; DISMISSED in part; REMANDED to correct the
judgment.
3 10-50409