U.S. v. Castellanos-Aguero

Full title: UNITED STATES of America, Plaintiff--Appellee, v. Sergio…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 23, 2001

17 F. App'x 584 (9th Cir. 2001)

Opinion

17 Fed.Appx. 584 (9th Cir. 2001) UNITED STATES of America, Plaintiff--Appellee, v. Sergio CASTELLANOS-AGUERO, aka Sergio Castellano-Aguero, Defendant--Appellant. No. 99-10076. D.C. No. CR-98-00729-SMM. United States Court of Appeals, Ninth Circuit. August 23, 2001

August 13, 2001. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant pleaded guilty in the United States District Court for the District of Arizona, Stephen M. McNamee, Chief Judge, to reentry after deportation. Defendant appealed, and counsel filed Anders brief and moved to withdraw as counsel. The Court of Appeals held that enforcement of plea agreement's waiver of right to appeal was warranted.

Appeal dismissed; case remanded with directions.

Page 585.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding.

Before HAWKINS, TASHIMA and GOULD, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Sergio Castellanos-Aguero appeals his single count conviction, pursuant to a guilty plea, and sentence for reentry after deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

Castellanos-Aguero's attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has moved to withdraw as counsel of record. Castellanos-Aguero did not file a pro se supplemental brief.

Because our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), indicates that the plea agreement, including the waiver of the right to appeal, was entered knowingly and voluntarily, United States v. Aguilar-Muniz, 156 F.3d 974, 976 (9th Cir.1998) (waiver of right to appeal is valid if knowing and voluntary), we enforce the waiver, grant counsel's motion to withdraw, and dismiss the appeal.

We REMAND to the district court with directions to correct the judgment of conviction to exclude the reference to 8 U.S.C. § 1326(b)(2), consistent with United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000). United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000).

DISMISSED.