United States v. Jason Berger ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10252
Plaintiff-Appellee, D.C. No. 3:13-cr-08075-DLR-1
v.
MEMORANDUM*
JASON CHRISTIAN BERGER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted May 16, 2023**
Before: BENNETT, MILLER, and VANDYKE, Circuit Judges.
Jason Christian Berger appeals from the district court’s order revoking
supervised release and imposing a 24-month sentence. Pursuant to Anders v.
California, 386 U.S. 738 (1967), Berger’s counsel has filed a brief stating that
there are no grounds for relief, along with a motion to withdraw as counsel of
*
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).
record. Berger has filed a pro se supplemental 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. Berger’s
pro se arguments that his underlying conviction is invalid because he is innocent,
and that his former attorneys were ineffective, cannot be raised in these
proceedings. See United States v. Cate, 971 F.3d 1054, 1058-59 (9th Cir. 2020)
(defendant cannot attack his underlying conviction in a supervised release
revocation proceeding); United States v. Rahman, 642 F.3d 1257, 1259-60 (9th
Cir. 2011) (ineffective assistance of counsel claims are generally not considered on
direct appeal). Moreover, the record shows that Berger’s supervised release was
not revoked for his alleged use of cocaine or for failing to attend drug treatment.
Rather, his supervised release was properly revoked upon his admission that he had
failed to appear for mandatory drug tests.
Counsel’s motion to withdraw is GRANTED. Berger’s pro se requests for
relief are DENIED.
AFFIRMED.
2 22-10252