Opinion
Nos. 08-10160, 08-10161.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 23, 2009.
John Robert Lopez, Karen S. McDonald, Assistant U.S., Office of the U.S. Attorney, Phoenix, AZ, for Plaintiff-Appellee.
Marc Victor, Esquire, Chandler, AZ, for Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. Nos. 2:01-cr-00799-SMM, 2:07-cr-00564-SMM.
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
In these consolidated appeals, Nelson Ayala-Duran appeals from: (1) his jury-trial conviction and 63-month sentence for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a); and (2) the district court's revocation of his supervised release and imposition of a 36-month concurrent sentence. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Ayala-Duran's counsel has filed a brief stating there are no grounds for relief in either appeal, along with a motion to withdraw as counsel of record in both appeals. We have provided the appellant with 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, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel's motion to withdraw is GRANTED. We remand in case # 2:07-cr-00564-SMM for the limited purpose of correcting the judgment so that it is consistent with the district court's oral pronouncement regarding applicability of the fine. See, e.g., United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993). We also remand in case # 2:01-cr-00799-SMM for the limited purpose of correcting the judgment so that the sentence does not exceed the 24-month statutory maximum. See 18 U.S.C. § 3583(e)(3). The judgments are AFFIRMED in all other respects.