United States v. Gabriel Rodriguez-Rodriguez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50216
Plaintiff-Appellee, D.C. No. 3:16-cr-00374-W-1
v.
MEMORANDUM*
GABRIEL RODRIGUEZ-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Gabriel Rodriguez-Rodriguez appeals from the district court’s judgment and
challenges his guilty-plea conviction and 37-month sentence for being a removed
alien found in the United States, in violation of 8 U.S.C. § 1326. Pursuant to
Anders v. California, 386 U.S. 738 (1967), Rodriguez-Rodriguez’s counsel has
*
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).
filed a brief stating that there are no grounds for relief, along with a motion to
withdraw as counsel of record. We have provided Rodriguez-Rodriguez the
opportunity to file a pro se supplemental brief. No pro se supplemental brief or
answering brief has been filed.
Rodriguez-Rodriguez entered into a plea agreement that contained an appeal
waiver. We decline to enforce the waiver, however, because the district court
failed to advise Rodriguez-Rodriguez of the waiver during the change-of-plea
hearing, in violation of Federal Rule of Criminal Procedure 11(b)(1)(N). See
United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004).
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.
Counsel’s motion to withdraw is GRANTED.
AFFIRMED.
2 19-50216