Opinion
No. 05-50671.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 21, 2008.
Becky S. Walker, Esq., Anthony R. Montero, Esq., USLA-Office of the U.S. Attorney Criminal Division, Los Angeles, CA, for Plaintiff-Appellee.
Kenneth M. Stern, Esq., Law Offices Kenneth M. Stern, Woodland Hills, CA, Flumencio Pena-Deniz, CCCI-California City Correctional Institution, California City, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California, Ronald S.W. Lew, District Judge, Presiding. D.C. No. CR-04-01452-RSWL.
Before: LEAVY, RYMER and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Flumencio Pena-Deniz appeals from his guilty-plea conviction and the 84-month sentence imposed for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Pena-Deniz's counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. Pena-Deniz has filed a pro se supplemental brief. The government has filed a motion to dismiss for lack of jurisdiction to which Pena-Deniz has filed an opposition.
Pena-Deniz conditionally waived the right to appeal his sentence, with the exception of the district court's determination of his criminal history category and certain conditions of supervised release. Our examination of the briefs and our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), indicate that the appeal waiver is operative. Accordingly, we grant in part the government's motion to dismiss. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000).
With regard to Pena-Deniz's conviction, the determination of his criminal history category, and the conditions of supervised release from which he retained the right to appeal, our independent review of the record discloses no arguable grounds for relief, and we affirm.
To the extent that Pena-Deniz is asserting an ineffective assistance of counsel claim, we decline to consider it on direct appeal. See United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003).
Counsel's motion to withdraw is GRANTED.
The government's motion to dismiss is GRANTED in part.
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED in part; DISMISSED in part; REMANDED with instructions to correct the judgment.