United States v. James Highhouse ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10231
Plaintiff-Appellee, D.C. No. 4:22-cr-00016-HSG-1
v.
MEMORANDUM*
JAMES THEODORE HIGHHOUSE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Submitted July 18, 2023**
Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
James Theodore Highhouse appeals from the district court’s judgment and
challenges his guilty-plea convictions and aggregate 84-month sentence for two
counts of sexual abuse of a ward, two counts of abusive sexual contact, and one
count of making false statements, in violation of 18 U.S.C. §§ 2243(b), 2244(a)(4),
*
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).
and 1001, respectively. Pursuant to Anders v. California, 386 U.S. 738 (1967),
Highhouse’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
Highhouse the opportunity to file a pro se supplemental brief. No pro se
supplemental brief or answering brief has been filed.
Highhouse 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 except as to supervised release special conditions 4 and 12, which we
vacate and remand for the district court to modify in a manner consistent with
United States v. Nishida, 53 F.4th 1144, 1151-55 (9th Cir. 2022).
We also remand with instructions to correct the amended written judgment
to conform to the unambiguous oral pronouncement of sentence by (1) suspending
the drug testing condition and (2) imposing a one-year term of supervised release
on Count 5. See United States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015)
(unambiguous oral pronouncement of sentence controls over inconsistent written
judgment). In addition, we remand to correct the statutory citation for Counts
Three and Four to 18 U.S.C. § 2244(a)(4).
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Counsel’s motion to withdraw is GRANTED.
DISMISSED in part; VACATED in part; and REMANDED with
instructions.
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