United States v. Joseph Pugh, Jr.

FILED
NOT FOR PUBLICATION
AUG 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10587
Plaintiff-Appellee, D.C. No.
1:14-cr-00038-FMTG-1
v.
JOSEPH LEE PUGH, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief Judge, Presiding
Submitted August 16, 2016**
Before: HUG, FARRIS, and CANBY, Circuit Judges.
Joseph Lee Pugh, Jr. appeals from the district court’s judgment and
challenges his guilty-plea conviction and 108-month sentence for conspiracy to
distribute methamphetamine hydrochloride, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(C). Pursuant to Anders v. California, 386 U.S. 738
*
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).
(1967), Pugh’s counsel has filed a brief stating that there are no grounds for relief,
along with a motion to withdraw as counsel of record. Pugh has filed a pro se
supplemental brief. No answering brief has been filed.
Pugh waived his right to appeal his conviction with the exception of an
appeal based on claims that his guilty plea was involuntary, he received ineffective
assistance of counsel, or there was prosecutorial misconduct. Our independent
review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses
no arguable grounds for relief with respect to these issues. We therefore affirm the
conviction as to these issues. We dismiss the remainder of Pugh’s appeal of the
conviction based on the appeal waiver. See United States v. Watson, 582 F.3d 974,
986-88 (9th Cir. 2009).
In his written plea agreement, Pugh waived his right to appeal his sentence.
However, because the district court did not discuss Pugh’s waiver of his right to
appeal his sentence during the change of plea hearing, we decline to enforce that
waiver. See United States v. Arellano–Gallegos, 387 F.3d 794, 796-97 (9th Cir.
2004). Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75 (1988), discloses no arguable grounds for relief on direct appeal with regard to
Pugh’s sentence. Accordingly, we affirm the sentence.
2
In his pro se supplemental brief Pugh contends that his attorney provided
ineffective assistance of counsel at sentencing. We decline to review Pugh’s
ineffective assistance of counsel claims on direct appeal. See United States v.
Rahman, 642 F.3d 1257, 1260 (9th Cir. 2011) (holding that we review ineffective
assistance of counsel claims on direct appeal only in the unusual cases where the
record is sufficiently developed or the legal representation is so obviously
inadequate that it denies a defendant his Sixth Amendment right to counsel). We
leave open the possibility that Pugh might raise an ineffective assistance of counsel
claim in collateral proceedings. See id.
Counsel’s motion to withdraw is GRANTED.
Pugh’s pro se motion for new counsel is DENIED.
AFFIRMED in part; DISMISSED in part.
3