United States v. Michael Van Niekerk

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50161
Plaintiff-Appellee, D.C. No. 3:20-cr-00879-JLS-1
v.
MEMORANDUM*
MICHAEL JAMES VAN NIEKERK,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted April 11, 2022**
Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.
Michael James Van Niekerk appeals from the district court’s judgment and
challenges the 76-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Van Niekerk’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 Van Niekerk the opportunity to
file a pro se supplemental brief. No pro se supplemental brief or 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.
We remand, however, solely for the district court to strike from the written
judgment special condition 2, which was not orally pronounced. See United States
v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015).
Counsel’s motion to withdraw is GRANTED.
AFFIRMED; REMANDED to correct the judgment.
2 21-50161